                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                  July 17, 2013 Session

RICHARD McGARITY and TERESA McGARITY v. CORBIN JERROLDS
                  and AMBER JERROLDS

             Direct Appeal from the Chancery Court for Hardin County
                     No. CH-100     Ron E. Harmon, Chancellor


                No. W2013-00250-COA-R3-CV - Filed August 27, 2013


This is a grandparent visitation case. The trial court awarded visitation to paternal
grandparents on the basis of a finding of severe emotional harm to the child if visitation was
not granted. The child’s mother and adoptive father appeal. We affirm the trial court’s ruling
with regard to the evidentiary and procedural issues, but reverse as to the finding of a
likelihood of severe emotional harm. Affirmed in part, reversed in part, and remanded.

 Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed
                     in Part; Reversed in Part; and Remanded

J. Steven Stafford, J., delivered the opinion of the Court, in which Alan E. Highers, P.J.,
W.S., and David R. Farmer, J., joined.

J. Gilbert Parrish, Jr., Savannah, Tennessee, for the appellants, Corbin Jerrolds and Amber
Jerrolds.

Terry L. Wood, Adamsville, Tennessee, for the appellees, Richard McGarity and Teresa
McGarity.

                                         OPINION

                                       I. Background

       Appellants Corbin Jerrolds and Amber Jerrolds (“Mother,” and together with Mr.
Jerrolds, “Appellants”) are the biological mother and adoptive father of the minor child (born
in 2009) at issue in this case. Appellees Richard McGarity and Teresa McGarity (together
with Mr. McGarity, “Grandparents”) are the paternal grandparents of the child. Mother and
the child’s biological father divorced and Mother married Mr. Jerrolds. After the marriage,
Mr. Jerrolds adopted the child. After the adoption, Appellants determined that visitation with
Grandparents was no longer in the child’s best interest. Due to the cessation of visitation, the
Grandparents filed a petition for grandparent visitation.

        At trial, the parties stipulated that Grandparents had a substantial relationship with the
child. The parties testified that Grandparents babysat the child three or four times a week and
kept him two or three days a month on weekends. After Mother married Mr. Jerrolds,
however, the visitation was modified to every Friday from 7:30 a.m. to 5:00 p.m. Visitation
of any kind ended on February 1, 2012. Mother testified that she terminated visitation
because it made the child confused and she did not want the child to learn that his biological
father voluntarily relinquished his parental rights until he was old enough to process that
information. Mother also testified that it was emotionally painful for her to maintain the
relationship with Grandparents. Mother finally testified that she wanted to foster the child’s
relationship with Mr. Jerrolds and the child’s new grandparents. According to Mother,
continuing to visit Grandparents was an obstacle to furthering those relationships due to
complications and conflicts that could arise in seeking to accommodate three sets of
grandparents, as well as the stress caused by scheduling the visits. Mother also testified that
after the cessation of visitation, she observed no adverse consequences to the child. Mr.
Jerrolds likewise testified to his concern that continued visitation would prevent the creation
of a cohesive family unit. According to both Mother and Mr. Jerrolds, since the time Mr.
Jerrolds adopted the child, the child knows Mr. Jerrolds as his Father and the child has
responded well to that relationship. According to Mother, only after visits with Grandparents,
did the child become confused about who his father is or who Mr. Jerrolds is in relation to
himself. Finally, Mother, Mr. Jerrolds, maternal grandmother, and another witness testified
that since the cessation of visitation with Grandparents, the child has not exhibited any signs
of harm; instead, they all testified that he is a happy and well-adjusted child. However,
maternal grandmother also admitted that she believed the child would suffer substantial harm
if her own relationship with the child were severed.

        In contrast, Ms. McGarity testified that they had a close and loving relationship with
the child. Grandparents submitted several photographs and a video of them interacting with
the child. Ms. McGarity testified that she and her husband were close with the child and that
cutting the child off from them could hurt the child. A witness testified that when she
observed Grandparents returning the child to Mother, the child would cry and not want to
leave Grandparents. Another witness also testified that when she saw the child approximately
four to six weeks after the cessation of visitation and mentioned Grandparents to the child,
the child became excited and called out paternal grandmother’s name. Ms. McGarity also
denied that she or her husband ever attempted to confuse the child with regard to who his
father is.



                                               -2-
       The trial court took the matter under advisement at the conclusion of trial and asked
each party to prepare proposed findings of fact and conclusions of law. The trial court
entered an order on December 17, 2012, which incorporated by reference the proposed
findings of fact and conclusions of law prepared by Grandparents in their entirety. In the
order, the trial found that the cessation of visitation between the child and paternal
grandparents was likely to cause substantial harm to the child. The paternal grandparents
were, therefore, awarded visitation one weekend a month and on Christmas Day, with
permission to attend all school and sporting events in which the child participates.
Grandparents later filed a Motion for Discretionary Costs, which was denied by Judge C.
Creed McGinley, sitting for the trial court by interchange, on May 3, 2013.

        Appellants appealed, raising the following issues, which are restated from their brief:

                 1.       Whether the trial court erred in permitting the admission
                          of photos and videotape over the objection of counsel
                          after a stipulation that Grandparents had a substantial
                          relationship with the child?
                 2.       Whether the trial court erred in not making its own
                          independent findings of fact and conclusions of law
                          when it simply approved the proposed findings of fact
                          and conclusions of law of Grandparents?
                 3.       Does the Grandparents’ visitation violate Appellants’
                          fundamental rights as parents under the Tennessee and
                          U.S. Constitutions to exercise control over the care and
                          custody of their children?
                 4.       Did the trial court err in concluding that visitation is in
                          the best interests of the child? 1


        1
            In their brief, Grandparents also argue that Judge McGinley erred in denying their motion for
discretionary costs. However, Grandparents fail to designate this as an issue in a Statement of the Issues
section in their brief. See Forbess v. Forbess, 370 S.W.3d 347, 356 (Tenn. Ct. App. 2011) (concluding that
Appellee waived affirmative issues on appeal by failing to include the issues in a Statement of the Issues
section in the Appellee’s appellate brief). In addition, Grandparents fail to cite any law to support their
discretionary costs request. The failure to cite authority to support an argument on appeal constitutes a waiver
of the issue. See Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006) (failure “to cite to any
authority or to construct an argument regarding [a] position on appeal” constitutes a waiver of the issue).
Even assuming, arguendo, that this issue was properly raised and argued on appeal, discretionary costs are
only awarded to the prevailing party. See Tenn. R. Civ. P. 54.04 (“Costs . . . shall be allowed to the prevailing
party . . . .”). Because we have concluded that the trial court erred in granting visitation to Grandparents,
they are no longer the prevailing party in this case. Accordingly, we decline to award them discretionary
costs.

                                                      -3-
                                          II. Analysis

        Because this case was heard by the trial court, sitting without a jury, we review the
trial court’s findings of fact de novo with a presumption of correctness, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d). No presumption of correctness, however,
attaches to the trial court’s conclusions of law and our review is de novo. Blair v. Brownson,
197 S.W.3d 681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000)). For the evidence to preponderate against a trial court’s finding of fact, it must support
another finding of fact with greater convincing effect. 4215 Harding Road Homeowners
Ass'n. v. Harris, 354 S.W.3d 296, 305 (Tenn. Ct. App. 2011); Walker v. Sidney Gilreath &
Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000).

                         A. Admission of Photographs and Video

        The Appellants first argue that the trial court erred in permitting the admission of
photographic and video evidence showing the relationship between Grandparents and the
child. Trial courts are given wide latitude on evidentiary decisions and we will only overturn
the trial court’s decision upon a showing of an abuse of discretion. Danny L. Davis
Contractors, Inc. v. Hobbs, 157 S.W.3d 414, 419 (Tenn. Ct. App. 2004). “The abuse of
discretion standard requires us to consider: (1) whether the decision has a sufficient
evidentiary foundation; (2) whether the trial court correctly identified and properly applied
the appropriate legal principles; and (3) whether the decision is within the range of
acceptable alternatives.” Id. (citing Crowe v. First Am. Nat'l Bank, No. W2001-00800-
COA-R3-CV, 2001 WL 1683710, at *9 (Tenn. Ct. App. Dec. 10, 2001)).

        From our review of the record, however, counsel for Appellants did not object to these
photographs until after counsel for Grandparents had questioned Ms. McGarity about them.
In addition, when counsel for Grandparents offered the compact disc containing the allegedly
objectionable photographs as evidence, the trial court specifically asked counsel for
Appellants if there was an objection. Counsel for Appellants responded only that he wanted
an opportunity to review the compact disc, not that he had an objection to the admission of
the photographs. Further, when counsel for Grandparents sought to introduce the video of
Grandparents with the child, the trial court again asked for any objections. Counsel for
Appellants responded that there were no objections subject to his review of the video.
According to the record before this Court, counsel for Appellants did not raise any objections
to either the photographic or video evidence subsequent to their review.

      In most cases, in order to raise an issue on appeal regarding the admissibility of
evidence, the party raising the issue must have made a contemporaneous objection. It is

                                               -4-
well-settled that the failure to raise a contemporaneous objection to the admission of
evidence at the time the evidence is introduced at trial results in waiver of the particular issue
on appeal. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring
relief be granted to a party . . . who failed to take whatever action was reasonably available
to prevent or nullify the harmful effect of the error.”); State v. Thompson, 36 S.W.3d 102,
108 (Tenn. Crim. App. 2000). In this case, counsel for Appellants did not object to the
questions regarding the photographs until after several of the photographs had been admitted.
In addition, counsel for Appellants did not raise any objection when Grandparents’ counsel
sought to introduce the compact disc of the photographs as evidence. Further, counsel for
Appellants made no objection to the admission of the video evidence. Under these
circumstances, any argument that the trial court erred in admitting this evidence is waived.

                 B. Proposed Findings of Fact and Conclusions of Law

       The Appellants next argue that the trial court erred in requesting that the parties
submit proposed findings of fact and conclusions of law and then adopting Grandparents’
proposed order in its entirety. Specifically, the trial court entered a judgment that
incorporated by reference the findings of Grandparents. This issue was recently discussed in
Beach Community Bank v. Labry, No. W2011-01583-COA-R3-CV, 2012 WL 2196174
(Tenn. Ct. App. June 15, 2012):

               [A]fter the adoption of the Tennessee Rules of Civil Procedure,
               the Supreme Court, in Delevan-Delta Corp. v. Roberts, 611
               S.W.2d 51 (Tenn.1981), recognized that “the thorough
               preparation of suggested findings and conclusions by able
               counsel can be of great assistance to the trial court.” Id. at
               52–53. Accordingly, the Supreme Court held that “although it is
               improper for the trial court to require counsel to prepare
               findings, it is permissible and indeed sometimes desirable for
               the trial court to permit counsel for any party to submit proposed
               findings and conclusions.” Id. at 53.

                      The decision in Roberts was discussed in detail by this
               Court in Madden Phillips Const., Inc. v. GGAT Development
               Corp., 315 S .W.3d 800 (Tenn. Ct. App. 2009). According to
               this Court:

                            The Roberts court offered guidance to
                      lower courts when establishing findings of fact.
                      The court maintained a clear preference for

                                               -5-
                     factual findings that are a product of the judges
                     own labor. [Delevan–Delta Corp. v. Roberts, 611
                     S.W.2d 51, 53 (Tenn. 1981).] The Roberts court
                     recognized, however, that other procedures
                     sufficiently maintain the independence and
                     impartiality of courts that adopt party-prepared
                     findings. The court stated that trial judges may
                     rely on party-prepared findings, so long as they
                     carefully review proposed findings to ensure that
                     the findings reliably reflect the court's opinion
                     based on the testimony and evidence produced at
                     trial. Id. The court also recognized a need to
                     ensure that the proposed findings dispose of all
                     relevant issues. Id. The court advised trial courts
                     to “ascertain that [party-prepared findings]
                     adequately dispose of all material issues, and to
                     assure that matters not a proper part of the
                     determination have not been included.” Id.

              [Madden Phillips, 315 S.W.3d] at 810–11.

Labry, 2012 WL 2196174, at *5. In addition, this Court discussed the case of Airline
Construction, Inc. v. Barr, 807 S.W.2d 247 (Tenn. Ct. App. 1990), in which the Court held
that “the trial court did not err in requesting the parties to submit proposed findings to the
court and eventually adopting verbatim the order that ‘best represent[ed] the opinion of the
[c]ourt.’” Labry, 2012 WL 2196174, at *5 (citing Barr, 807 S.W.2d at 253).

       The situation in this case is similar to that presented in Barr. Here, the trial court
requested that both parties submit proposed findings of fact and conclusions of law. Nothing
in the record indicates that the trial court failed to review both proposed orders before
entering the order prepared by Grandparents. Further, “[n]othing in the record indicates that
the order entered does not reflect the trial court’s view of the case.” Labry, 2012 WL
2196174, at *5. This issue concerns only whether the trial court erred in adopting party-
prepared findings, not whether those findings are supported by the preponderance of the
evidence. Accordingly, we hold that the trial court’s decision to adopt the Appellant’s
findings of fact and conclusions of law was not reversible error.

                                   C. Substantial Harm

       Appellants next argue that the trial court’s ruling granting continued visitation to

                                             -6-
Grandparents violates their constitutional rights.2 As we perceive it, from both Appellants’
brief and oral argument, Appellants do not argue that the Grandparent Visitation Statute is
facially unconstitutional;3 rather, Appellants contend that the trial court erred in concluding
that Grandparents submitted sufficient evidence to support a finding that substantial harm
would come to the child upon cessation of the Grandparents’ visitation; accordingly,
Appellants argue that there is insufficient evidence to satisfy the requirements of the
Grandparent Visitation Statute, and to justify the grant of grandparent visitation. In other
words, the Appellants argue that because the evidence in the record is not sufficient to prove
substantial harm to the child from cessation of the grandparent-grandchild relationship, the
trial court’s order granting grandparent visitation violates both the Appellants’ Constitutional
privacy interests, and the Tennessee Grandparent Visitation Statute.

       Tennessee Code Annotated Section 36-6-306, commonly referred to as the
Grandparent Visitation Statute, governs Grandparents’ petition for visitation in this case. The
Statute states, in pertinent part:

                 (a) Any of the following circumstances, when presented in a
                 petition for grandparent visitation to the circuit, chancery,


        2
          As a point of practice, we note that Grandparents have standing to petition the court for grandparent
visitation with the child despite the fact that Grandparents’ son, who is the biological father of the child,
allowed his parental rights to the child to be terminated and the child was adopted by his step-father, Mr.
Jerrolds. See Tenn. Code Ann. § 36-6-306 (d)(1) (“Notwithstanding the provisions of § 36-1-121, if a relative
or stepparent adopts a child, the provisions of this section [e.g., the Grandparent Visitation Statute] apply.”)
        3
          Even if the Appellants do contend that the Grandparent Visitation Statute is facially
unconstitutional, this argument was not properly raised in the trial court, or on appeal. Rule 24.04 of the
Tennessee Rules of Civil Procedure provides:

                 When the validity of a statute of this state or an administrative rule or
                 regulation of this state is drawn in question in any action to which the State
                 or an officer or agency is not a party, the court shall require that notice be
                 given the Attorney General, specifying the pertinent statute, rule or
                 regulation.

Id. This Court has previously held that failure to notify the Attorney General of the litigant’s intent to
challenge the validity of a statute in the trial court in accordance with Rule 24.04 operates as a waiver of the
issue on appeal. See Buettner v. Buettner, 183 S.W.3d 354 (Tenn. Ct. App. 2005). The Tennessee Supreme
Court has noted, however, that the failure to provide notice is not fatal when the challenged statutes are so
clearly or blatantly unconstitutional as to obviate the necessity for any discussion.” In re Adoption of E.N.R.,
42 S.W.3d 26, 28 (Tenn. 2001).The Tennessee Grandparent Visitation Statute is not “so clearly or blatantly
unconstitutional as to obviate the necessity for any discussion.” Id. Accordingly, we decline to consider its
facial constitutionality.

                                                      -7-
general sessions courts with domestic relations jurisdiction or
juvenile court in matters involving children born out of wedlock
of the county in which the petitioned child currently resides,
necessitates a hearing if such grandparent visitation is opposed
by the custodial parent or parents:

(1) The father or mother of an unmarried minor child is
deceased;
(2) The child’s father or mother are divorced, legally separated,
or were never married to each other;
(3) The child's father or mother has been missing for not less
than six (6) months;
(4) The court of another state has ordered grandparent visitation;
(5) The child resided in the home of the grandparent for a period
of twelve (12) months or more and was subsequently removed
from the home by the parent or parents (this
grandparent-grandchild relationship establishes a rebuttable
presumption that denial of visitation may result in irreparable
harm to the child); or
(6) The child and the grandparent maintained a significant
existing relationship for a period of twelve (12) months or more
immediately preceding severance of the relationship, this
relationship was severed by the parent or parents for reasons
other than abuse or presence of a danger of substantial harm to
the child, and severance of this relationship is likely to occasion
substantial emotional harm to the child.

(b)(1) In considering a petition for grandparent visitation, the
court shall first determine the presence of a danger of substantial
harm to the child. Such finding of substantial harm may be
based upon cessation of the relationship between an unmarried
minor child and the child’s grandparent if the court determines,
upon proper proof, that:

(A) The child had such a significant existing relationship with
the grandparent that loss of the relationship is likely to occasion
severe emotional harm to the child;
(B) The grandparent functioned as a primary caregiver such that
cessation of the relationship could interrupt provision of the
daily needs of the child and thus occasion physical or emotional

                                -8-
              harm; or
              (C) The child had a significant existing relationship with the
              grandparent and loss of the relationship presents the danger of
              other direct and substantial harm to the child.

                                         *    *     *

              (3) A grandparent is not required to present the testimony or
              affidavit of an expert witness in order to establish a significant
              existing relationship with a grandchild or that the loss of the
              relationship is likely to occasion severe emotional harm to the
              child. Instead, the court shall consider whether the facts of the
              particular case would lead a reasonable person to believe that
              there is a significant existing relationship between the
              grandparent and grandchild or that the loss of the relationship is
              likely to occasion severe emotional harm to the child.

                                          *   *     *

              (c) Upon an initial finding of danger of substantial harm to the
              child, the court shall then determine whether grandparent
              visitation would be in the best interests of the child based upon
              the factors in § 36-6-307. Upon such determination, reasonable
              visitation may be ordered.

       Before we consider the substantive issue raised in this appeal, we briefly review the
law on grandparent visitation in Tennessee. As explained in this Court’s opinion in Green
v. Evans, No. M2011-00276-COA-R3-CV, 2012 WL 1107887 (Tenn. Ct. App. March 30,
2012):

              The decisions of the U.S. Supreme Court and the Tennessee
              Supreme Court, interpreting the federal and state constitutions,
              explicitly prohibit any judicial assum ption tha t
              grandparent/grandchild relationships always benefit the child, as
              contrary to the parents’ fundamental right to raise their children
              as they see fit. See Troxel v. Granville, 530 U.S. 57, 66–72, 120
              S.Ct. 2054, 147 L.Ed.2d 49 (2000) (recognizing parents’
              fundamental constitutional right to make decisions on care,
              custody and control of children, finding trial court erred in
              presuming grandparent visits are in best interest of children);

                                              -9-
             Hawk v. Hawk, 855 S.W.2d 573, 577–82 (Tenn. 1993)
             (recognizing parents’ fundamental constitutional right, finding
             trial court engaged in “sentimental” commentary on
             grandparents and erred in “unquestioning judicial assumption”
             that grandparent-grandchild relationship always benefits child,
             basing award of grandparent visitation on that presumed
             benefit). To avoid such an assumption, the Tennessee
             constitution and Tennessee’s grandparent visitation statute
             require a grandparent seeking visitation to prove, as a threshold
             requirement, that the child will be in danger of substantial harm
             if visitation is not ordered by the court. Hawk, 855 S.W.2d at
             581; Tenn. Code Ann. § 36-6-306(b)(1). . . . Under Troxel,
             pursuant to the federal constitution, in all phases of a proceeding
             on grandparent visitation, there is a presumption that a fit parent
             is acting in the child’s best interest, and the court must accord
             special weight to the parent's determinations. Troxel, 530 U.S.
             at 68, 70 (plurality opinion) (“there is a presumption that fit
             parents act in the best interests of their children.”) . . . .

Green, 2012 WL 1107887, at *8.

        Thus, the “substantial harm” component is the threshold question in grandparent
visitation cases. As explained in Hawk:

             The requirement of harm is the sole protection that parents have
             against pervasive state interference in the parenting process. As
             one author has stated:

                    For the state to delegate to the parents the
                    authority to raise the child as the parents see fit,
                    except when the state thinks another choice would
                    be better, is to give the parents no authority at all.
                    ‘You may do whatever you choose, so long as it
                    is what I would choose also’ does not constitute a
                    delegation of authority.

             Bean, Grandparent Visitation: Can the Parent Refuse?, 24 U.
             Louisville J.Fam.L. 393, 441 (1985–6) [hereinafter Bean,
             Grandparent Visitation ]. . . .



                                            -10-
                                         *    *     *

                    We, too, agree that neither the legislature nor a court may
            properly intervene in parenting decisions absent significant harm
            to the child from those decisions. . . . An approach requiring a
            court to make an initial finding of harm to the child before
            evaluating the “best interests of the child” works equally well in
            this case to prevent judicial second-guessing of parental
            decisions. As one scholar has written:

                   If the courts attempt to resolve these disputes
                   when the only thing at stake is a grandparent's
                   argument that visitation is a ‘better’ decision for
                   the child, the placement of the child with the
                   parent becomes subject to the court's supervision
                   and judgment of what are the best decisions for
                   that child.

            See Bean, Grandparent Visitation, supra, at 444–5.

                   By applying this type of analysis, we also seek to avoid
            the “unquestioning judicial assum ption” that
            grandparent-grandchild relationships always benefit children, an
            assumption that overlooks the necessity of a threshold finding
            of harm before the state can intervene in the parent-child
            relationship.

                                         *    *     *

                   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.

Hawk, 855 S.W.2d at 580–82 (footnote omitted).

      Since the decision in Hawk, the Tennessee Grandparent Visitation Statute has been

                                             -11-
amended to require proof of “the presence of a danger of substantial harm” as a threshold
requirement in most cases.4 See 2000 Tenn. Laws Pub. Ch. 891 (H.B. 2297) (2000)
(amending the Grandparent Visitation Statute to include a substantial harm component). As
succinctly discussed in Marlene Eskind Moses and Jessica J. Uitto, The Current Status of
Tennessee's Grandparent Visitation Law, Tenn. B. J., Jan. 2010, at 46, 24:

                 Because of the great deference that courts give to parental
                 decisions, when the court addresses grandparent visitation
                 rights, it must perform a lengthy and complex three-pronged
                 analysis. First, the grandparent seeking the court’s intervention
                 must show that one of six situations exists pursuant to Tenn.
                 Code Ann. § 36-6-306(a). Second, the court must determine
                 whether there is a danger of substantial harm to the child if the
                 child does not have visitation with the grandparent. The
                 foregoing is based on three factors set out in Tenn. Code Ann.
                 § 36-6-306(b)(1). In conjunction with this analysis, the court
                 must also determine if the relationship between the child and
                 grandparent is significant based on three more factors set out in
                 Tenn. Code Ann. § 36-6-306(b)(2). Third, if the court finds that
                 there is danger of substantial harm if the child does not have
                 visitation with the grandparent, it must decide whether the
                 visitation would be in the child's best interest based on seven
                 factors under Tenn. Code Ann. § 36-6-307.

Id. (footnotes omitted).

       In this case, there is no dispute that the Grandparents have standing to pursue their
petition for grandparent visitation, or that the Appellants have severed the relationship


        4
           Petitioning grandparents are not required to affirmatively prove substantial harm “when the parent
of a deceased parent of a child seeks grandparent visitation, see Tenn. Code Ann. §36-6-306(b)(4) (“[I]f the
child’s parent is deceased and the grandparent seeking visitation is the parent of that deceased parent, there
shall be a rebuttable presumption of substantial harm to the child based upon the cessation of the relationship
between the child and grandparent.”), or when the child resided in the home of the grandparents for a period
of twelve or more months prior to being removed by the parents. See Tenn. Code Ann. § 36-6-306(a)(6)
(“[T]this grandparent-grandchild relationship establishes a rebuttable presumption that denial of visitation
may result in irreparable harm to the child[.]”). In these two cases, the petitioning grandparents enjoy a
presumption that substantial harm will occur if the relationship is terminated. Because Grandparents’ son,
the biological parent of the child at issue, is not deceased, and the child did not reside with Grandparents for
one year prior to the cessation of the relationship, Grandparents in this case must meet the threshold
requirement to show the “presence of a danger of substantial harm.”

                                                     -12-
between Grandparents and the child. Further, the parties have stipulated that the child
enjoyed a “substantial existing relationship” with Grandparents prior to the cessation of
visitation. However, a finding of a substantial existing relationship, does not, ipso facto, lead
to the conclusion that the cessation of that relationship will cause substantial harm to the
child. Instead, the harm requirement is separate and distinct from a finding, or in this case,
a stipulation, that the child has a significant existing relationship with the petitioning
grandparents. As explained by this Court in Larson v. Halliburton, No. 2005 WL 2493478
(Tenn. Ct. App. Oct. 7, 2005):

                        The statute also addresses the circumstances that will
                support a finding that the child will suffer substantial harm if his
                or her grandparents are not granted visitation. Tenn. Code Ann.
                § 36-6-306(b)(1) provides that the court may find substantial
                harm if the child has a “significant existing relationship” with
                his or her grandparents and (A) the loss of that relationship is
                “likely to occasion severe emotional harm to the child,” (B) the
                grandparent functioned as a primary caregiver and that the
                cessation of that relationship “could interrupt provision of the
                daily needs of the child and thus occasion physical or emotional
                harm,” or (C) the loss of the relationship “presents the danger of
                other direct and substantial harm to the child.” In addition, Tenn.
                Code Ann. § 36-6-306(a)(5) establishes a rebuttable
                presumption of “irreparable harm” if the child has “resided in
                the home of the grandparent for a period of twelve (12) months
                or more.”

Larson, 2005 WL 2493478, at *5 (footnote omitted). The only provision at issue in this case
is section (A): whether the loss of the significant existing relationship is “likely to occasion
severe emotional harm to the child.”5 Thus, even with the stipulation regarding the
“significant existing relationship,” Grandparents were required to show that the child was
likely to suffer “severe emotional harm” due to the termination of that relationship.
Accordingly, on appeal, we must determine whether the loss of the child’s relationship with
Grandparents is likely to cause him “severe emotional harm.”

        As previously discussed, Grandparents had the burden to show a likelihood of severe


        5
           Grandparents did not argue in the trial court, nor do they argue on appeal, that the cessation of
visitation presents “the danger of other direct and substantial harm to the child.” Tenn. Code Ann. § 36-6-
306(b)(1)(C) (emphasis added). Nor do they argue that they served as primary care-givers to the child
pursuant to Tennessee Code Annotated Section 36-6-306(b)(1)(B).

                                                   -13-
emotional harm to the child due to the loss of the grandparent-grandchild relationship. See
Tenn. Code Ann. §36-6-306(C)(3) (requiring the grandparent to prove that “the loss of the
relationship is likely to occasion severe emotional harm to the child”) (emphasis added); see
also Uselton v. Walton, No. M2012-02333-COA-R3-CV, 2013 WL 3227608, at *16 (Tenn.
Ct. App. June 21, 2013) (framing the question, in dicta, as “whether the evidence submitted
at trial preponderates in favor of a finding that there was a danger that [the child] would
suffer severe emotional harm from the severance of her relationship with [the
g]randparents”). Only if the trial court correctly concluded that Grandparents had met their
burden, will we go further to consider whether visitation is in the child’s best interests. See
Tenn. Code Ann. § 36-6-306(c).

       The term “substantial harm” does not lend itself to easy definition. As explained by
this Court in Ray v. Ray, 83 S.W.3d 726 (Tenn. Ct. App. 2001):

              The courts have not undertaken to define the circumstances that
              pose a risk of substantial harm to a child. These circumstances
              are not amenable to precise definition because of the variability
              of human conduct. However, the use of the modifier
              “substantial” indicates two things. First, it connotes a real hazard
              or danger that is not minor, trivial, or insignificant. Second, it
              indicates that the harm must be more than a theoretical
              possibility. While the harm need not be inevitable, it must be
              sufficiently probable to prompt a reasonable person to believe
              that the harm will occur more likely than not.

Ray, 83 S.W.3d at 732. Few cases have considered the substantial harm issue as applied to
grandparent visitation in Tennessee. While there has been voluminous litigation regarding
the Grandparent Visitation Statute, it appears that this case is one of the few cases in
Tennessee to consider the issue of whether the petitioning grandparents have met their
burden to show that substantial harm, or more specifically, “severe emotional harm,” is
likely to occur due to the cessation of the relationship. Instead, several recent cases have
involved whether a cessation of the grandparent-grandchild relationship has occurred that
would give petitioning grandparents the right to seek visitation pursuant to the Grandparent
Visitation Statute. See Uselton v. Walton, No. M2012-02333-COA-R3-CV, 2013 WL
3227608 (Tenn. Ct. App. June 21, 2013) (Highers, J., dissenting) (holding that the
Grandparent Visitation Statute was not implicated because there was no cessation of
visitation); Green v. Evans, No. M2011-00276-COA-R3-CV, 2012 WL 1107887, at *10
(Tenn. Ct. App. March 30, 2012) (same); Huls v. Alford, No. M2008-00408-COA-R3-CV,
2008 WL 4682219, at *7–8 (Tenn. Ct. App. Oct. 22, 2008) (same); Rogers v. Turner, No.
E2007-02233-COA-R3-CV, 2008 WL 4613562, at *6–7 (Tenn. Ct. App. Oct. 13, 2008)

                                             -14-
(same). Other cases concerned whether the petitioners had standing to seek visitation
pursuant to the Grandparent Visitation Statute. See Spears v. Weatherall, 385 S.W.3d 547,
549–51 (Tenn. Ct. App. 2012) (concluding that former step-father of child’s biological
mother had no standing under Grandparent Visitation Statute) ; Lovlace v. Copley, No.
M2011-00170-COA-R3-CV, 2012 WL 368221, at *6–7 (Tenn. Ct. App. Feb. 03, 2012)
(perm. app. granted June 21, 2012) (concluding that biological father’s adoptive parents had
standing pursuant to Grandparent Visitation Statute); In re B.E.D., No.
W2003-02026-COA-R3-JV, 2004 WL 572342, at *4 (Tenn. Ct. App. March 22, 2004)
(concluding that child’s biological sister had no standing pursuant to Grandparent Visitation
Statute). Another case involved the presumption of harm created when the child resided in
the home of the petitioning grandparent for one year prior to the cessation of the relationship.
See Carr v. McMillan, No. M2007-00859-COA-R3-CV, 2008 WL 2078058, *6–7 (Tenn.
Ct. App. May 14, 2008) (perm. app. denied Dec. 8, 2008) (designated not for citation). At
least one case has involved the recent amendment to the Grandparent Visitation Statute
creating the presumption of substantial harm created by the death of one of the child’s
parents. See Wadkins v. Wadkins, No. M2012-00592-COA-R3-CV, 2012 WL 6571044, at
*7 (Tenn. Ct. App. Dec. 14, 2012) (designated not for citation). Still another case considered
whether res judicata barred a petition for grandparent visitation after an intervening change
in the law. See Jackson v. Smith, 387 S.W.3d 486, 491–95 (Tenn. 2012) (holding that an
intervening change in the law did not alter the usual application of res judicata without some
intervening change in circumstances).

        The Court in Ottinger v. Ottinger, No. E2003-02893-COA-R3-CV, 2004 WL
1626253 (Tenn. Ct. App. July 21, 2004), applying a previous version of the statute,6 did
consider the substantial harm requirement. According to the Court, the grandparents testified
that they believed the child would suffer substantial harm if visitation were not granted. The
child’s parents obviously disagreed. Thus, the grandparents employed an expert witness to
substantiate their claim of substantial harm. The expert testified that he believed that there
was danger of harm if a child’s relationship with his or her grandparents was terminated.
However, the expert admitted that he was testifying “in generalities as to all children who
had lost a parent and did not get to visit with grandparents.” The expert admitted he had not
actually examined or even spoken with the child at issue in the case. The trial court found

        6
          Ottinger occurred before the Grandparent Visitation Statute was amended to provide a presumption
that substantial harm will occur due to the cessation of a relationship with the child’s grandparents, if the
child’s parent is deceased and the petitioning grandparents are the parents of the deceased parent. Ottinger,
2004 WL 1626253, at *5; see also 2010 Tenn. Laws Pub. Ch. 957 (H.B. 2700) (2010) (amending the
Grandparent Visitation Statute to allow a presumption of substantial harm “if the child's parent is deceased
and the grandparent seeking visitation is the parent of that deceased parent”). Accordingly, the grandparents
in Ottinger, like Grandparents in this case, had the burden to show that substantial harm was likely to occur
due to the cessation of the grandparent-grandchild relationship.

                                                    -15-
that the petitioning grandparents had proven substantial harm and ultimately awarded
grandparent visitation. The Court of Appeals reversed, explaining:

                    A finding of a presence of a danger of substantial harm
            to the Child based upon the evidence in this record is contrary
            to the preponderance of the evidence and does not meet the
            standard set out in Tenn. Code Ann. § 36-6-306 and the current
            case law. The statutory standard requires that the petitioner
            prove a danger of substantial harm to the specific child with
            whom visitation is sought, not just to children in general. To
            hold otherwise would result in a presumption that all children
            suffer substantial harm by the denial of grandparent visitation
            which would leave only a best interest of the child analysis to be
            made by the court. Such a presumption is what our Supreme
            Court held unconstitutional in Hawk and would be contrary to
            the requirements of Tenn. Code Ann. § 36-6-306. Hawk, 855
            S.W.2d at 581.[The expert] candidly admitted that his testimony
            dealt with “generalities” about what, in his professional opinion,
            “is in the best interest of the children in general.” In short, [the
            expert] admitted that he could not give a “specific opinion
            directed at the [c]hild”, and he did not do so.
                    [Petitioning grandparents] failed to prove a danger of
            substantial harm to the particular child with whom visitation is
            sought. There is no evidence in the record to support a finding
            of “a real hazard or danger that is not minor, trivial, or
            insignificant” to the [c]hild should visitation with [petitioning
            grandparents] be denied. Ray, 83 S.W.3d at 732. Nor is there
            any evidence to support a finding that harm is “sufficiently
            probable to prompt a reasonable person to believe that the harm
            will occur more likely than not.” Id.
                    The Trial Court engaged in the type of presumptive
            analysis that our Supreme Court sought to avoid with the Hawk
            decision. Hawk, 855 S.W.2d at 581. The Trial Court stated that
            [the expert] simply told them what everybody knows, i.e., that
            it is important for a child to know his grandparents. The Trial
            Court also noted that it attempts to facilitate family
            relationships, short of someone being an ax murderer or a drug
            dealer. The Trial Court clearly was considering what would be
            in the best interest of the [c]hild. However, [petitioning
            grandparents] failed first to make a showing of a danger of

                                           -16-
              substantial harm to the [c]hild sufficient to meet the threshold
              requirement. Without such a showing, the best interest test never
              should have been reached. The initial question is not whether
              [the parent’s] decision concerning the [c]hild’s visitation or lack
              of visitation with [petitioning grandparents] is wise or unwise or
              even whether it is in the best interest of the [c]hild, but instead
              is whether the decision creates a danger of substantial harm to
              the [c]hild. Certainly in grandparent visitation cases such as this
              one, “neither the legislature nor a court may properly intervene
              in parenting decisions absent significant harm to the child from
              those decisions.” Id. Subject to the limitations of Tenn. Code
              Ann. § 36-6-306, a parent is free to decide that his or her child
              will not have contact or visitation with the grandparents. Absent
              the grandparents being able to satisfy the requirements of Tenn.
              Code Ann. § 36-6-306, the courts may not intervene with this
              decision by the parent.

Ottinger, 2004 WL 1626253, at *5. Thus, “[t]o find substantial harm, there must be
supporting evidence in the record that is specific to this child’s relationship with this
grandparent.” Green v. Evans, 2012 WL 1107887, at *10; see also Hale v. Culpepper, No.
M2002-01955-COA-R3-CV, 2003 WL 22994294, at *6–7 (Tenn. Ct. App. Dec. 22, 2003)
(reversing a finding of substantial harm when the only evidence in the record concerning the
specific child at issue, the testimony of a psychologist, tended to show that no harm would
come to the child due to the cessation of the grandparent-grandchild relationship).

       In another recent case, Angel v. Nixon, No. M2010-00554-COA-R3-CV, 2010 WL
4483915 (Tenn. Ct. App. Nov. 08, 2010), this Court applied the rule set out in Ottinger to
affirm the trial court’s finding that the child was likely to suffer substantial harm. In Angel,
unlike in Ottinger, the petitioning grandparents introduced evidence regarding the particular
child’s emotional state after the cessation of the grandparent-grandchild relationship to
support their argument that the child was likely harmed by the cessation of the grandparent-
grandchild relationship. Id. at *4. Specifically, this Court stated:

              The evidence reflect[ed], and the [trial] court found, that
              although the child was generally healthy and happy, the
              separation from [g]randmother for 10 months during the
              pendency of the litigation had already begun to have negative
              effects-the child referred to his grandmother as “mean,” and did
              not “warm up to her” during the supervised visits [that were
              ordered after the cessation of the relationship], while he

                                              -17-
              previously had a warm and loving relationship with her. The
              court also found that a reasonable person would find it likely
              that the separation would cause severe emotional harm for the
              child in the future, creating feelings of abandonment and
              depriving him of his right to learn about his heritage and the
              people who love him and cared for him when he was young.
              Last, the court found that if the child, when he was older,
              decided to pursue a relationship with [g]randmother, [m]other’s
              resentment and anger towards [grandmother] would force the
              child to be deceptive. Although these findings may also be true
              for children in general, the court clearly found them to be true
              for this particular child, meeting the requirement in Ottinger,
              2004 WL 1626253, at *5.

Angel, 2010 WL 4483915 at *4. The Court of Appeals concluded that this evidence, which
was specific to the child at issue in the case, was sufficient to show that the loss of the
grandparent-grandchild relationship was likely to cause substantial harm to the child. Id.

       Decisions by our sister states can also offer guidance on the substantial harm issue.
For example, in Mizrahi v. Cannon, 375 N.J.Super. 221, 867 A.2d 490 (N.J. Super. A.D.
2005), the Superior Court of New Jersey explained that:

              [G]randparents seeking visitation [under New Jersey’s
              grandparent visitation statute] . . . must establish that denying
              visitation would wreak a particular identifiable harm, specific to
              the child, to justify interference with a parent's fundamental due
              process right to raise a child free from judicial interference and
              supervision. Conclusory, generic items, such as “loss of
              potentially happy memories,” are not a sufficient basis to
              warrant such an intrusion into a parent's decision making.

Mizrahi, 867 A.2d at 498. Although New Jersey’s grandparent visitation statute does not
contain a harm component, the New Jersey Supreme Court has construed the statute to
require a threshold showing that “denial of the visitation [the grandparents] seek would result
in harm to the child.” Id. at 496 (citing Moriarty v. Bradt, 177 N.J. 84, 827 A.2d 203,
(2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L. Ed.2d 78 (2004) (“[I]nterference
with parental autonomy will be tolerated only to avoid harm to the health or welfare of a
child.”)). The Superior Court concluded that because there was no evidence of any harm
likely to occur if visitation ceased, including feelings of “guilt or inadequacy,” “confusion,”
a void in the child’s life, “rejection,” loss of the child’s cultural heritage, or economic loss

                                              -18-
due to the cessation of visitation, the grandparents failed to meet their burden to justify the
grant of grandparent visitation. Mizrahi, 867 A.2d at 498.

        Applying a statute that likewise requires petitioning grandparents to prove that the
denial of visitation will create a substantial risk of harm, the Michigan Appellate Court in
Keenan v. Dawson, 275 Mich. App. 671, 739 N.W.2d 681 (Mich. Ct. App.2007), upheld a
grant of grandparent visitation. In Keenan, the child’s maternal grandparents filed a petition
for grandparent visitation after the death of their daughter, the child’s mother. Id. at 683. The
evidence showed that after the child’s mother became involved with the child’s father, she
became alienated from her parents. Id. Although the maternal grandparents were allowed to
visit the child while mother was alive, once mother died, father no longer allowed any
visitation with the maternal grandparents. Id. To support their petition, the maternal
grandparents hired a clinical psychologist, who opined that the child would benefit from the
influence of maternal grandparents in his life. Id. at 684. Specifically, the psychologist
testified that the child would likely have no memories of mother and that maternal
grandparents would be best able to help the child “keep her memory alive.” Id. The trial
court utilized this testimony to find that the cessation of the child’s relationship with maternal
grandparents would be likely to cause the child substantial harm. Id. at 684–85. In affirming
the trial court’s finding, the Michigan Appellate Court stated:

               For sure, this was not merely a case where the trial court
               concluded that “grandparenting is good, therefore it should
               occur.” Rather, the trial court found, on the basis of the
               testimony of [maternal grandparents’ expert], that [the child] is
               and will be subject to emotional harm and turmoil in light of his
               mother's death. Additionally, both psychologists touched on the
               fact that a two-year-old child will have no lasting memory of
               persons in his or her life and, therefore, [the child] would have
               no memory of his mother . . . . The trial court’s conclusion, that
               visitation with the maternal grandparents will help reduce the
               substantial risk of emotional harm and suffering that [the child]
               will experience as he grows older, was not clearly erroneous.
                       Consequently, the trial court did not merely give “lip
               service” to the statutory presumption [that fit parent’s decision
               will not be interfered with without a finding of substantial harm]
               when it ruled in favor of the [maternal grandparents]. It also did
               not merely second-guess [father’s] decision because it thought
               grandparenting time was generally a good thing for children.
               Rather, after considering all the testimony about the harms that
               a young child can suffer when a parent dies and that part of the

                                              -19-
              family is “cut off” from the child, the trial court concluded that
              defendant's decision to deny [the child] time with his deceased
              mother’s parents would cause substantial harm to [the child],
              given [the child’s mother’s] untimely death and the substantial
              likelihood that [the child] will have an inability to remember his
              mother. That decision, which was based on the evidence and in
              consideration of the presumption, did not improperly interfere
              with [father’s] constitutional right to raise [the child] as he sees
              fit.

Keenan, 739 N.W.2d at 688. Because the maternal grandparents were able to show that the
specific child at issue in the case would likely suffer substantial harm from losing his best
chance at learning about his deceased mother, the Court affirmed the trial court’s grant of
visitation. Thus, the decisions in Ottinger, Angel, Mizrahi, and Keenan show that in order
to affirm a trial court’s finding of substantial harm, there must be affirmative evidence in the
record showing that the specific child at issue is likely to suffer substantial harm from the
loss of the grandparent-grandchild relationship.

        We also recognize that in addition to the substantial harm component, discussed
above, the Grandparent Visitation Statute also contains a requirement that the child be likely
to suffer “severe emotional harm” as a result of the loss of the significant existing
relationship with the petitioning grandparents. See Tenn. Code Ann. § 36-6-306(b)(1)(A).
The phrase “severe emotional harm” is not defined in the statute, nor has it been defined by
Tennessee Courts in the context of grandparent visitation. In interpreting the meaning of a
word or phrase in a statute, the court may use dictionary definitions. State v. Majors, 318
S.W.3d 850, 859 (Tenn. 2010) (quoting State v. Williams, 690 S.W.2d 517, 529 (Tenn.
1985)); see also 82 C.J.S. Statutes § 415 (“If the statute does not sufficiently define a word
used therein, the court may consider all known definitions of the word, including dictionary
definitions, in order to determine the plain and ordinary meaning of the word.”) (footnotes
omitted). Black’s Law Dictionary defines “severe” as “[s]harp, grave, distressing, violent,
extreme, . . . rigorous, [and] difficult to be endured.” Black’s Law Dictionary 1233 (5th ed.
1979). We, like the Court in Ray, decline to assign the phrase “severe emotional harm” an
exact definition for purposes of the Grandparent Visitation Statute. Like the “substantial
harm” requirement, “severe emotional harm” is “not amenable to precise definition because
of the variability of human conduct.” Ray, 83 S.W.3d at 732. However, we find instructive
other Tennessee cases using this language as an indication of the high burden placed on
litigants who are required to prove “severe emotional harm.”

       For example, Tennessee Courts often use the phrase “severe emotional harm” in the
context of emotional distress cases. Recently in Marla H. v. Knox County, 361 S.W.3d 518

                                              -20-
(Tenn. Ct. App. 2011), this Court defined “serious or severe emotional harm” as harm “that
occurs where a reasonable person, normally constituted, would be unable to adequately cope
with the mental stress engendered by the circumstances of the case.” Marla, 361 S.W.3d at
529 (internal quotation omitted) (citing Camper v. Minor, 915 S.W.2d 437, 446 (Tenn.
1996)). Some commentators have criticized this definition for being too narrow and
preventing otherwise valid emotional distress claims:

              Over the long run, most people can “cope” with almost
              anything. They may need therapy, they may need medication,
              they may need both, but they can “cope.” Certainly the Court
              meant to permit recovery in cases where a person sought
              counseling or received medication, particularly if the counseling
              or medication was received over an extended period.

John A. Day, A Primer on the Law of Negligent Infliction of Emotional Distress, Tenn. B.J.,
May 2005, at 28 n.5. However, our Supreme Court has noted that Tennessee is “one of
thirteen states currently using this definition.” Eskin v. Bartee, 262 S.W.3d 727, 735 n.12
(Tenn. 2008). This definition is also consistent with leading treatises on the subject, as well
as the Restatement (Second) of Torts. See 2 Stein on Personal Injury Damages § 10:13 (3d
ed.) (“[T]he Restatement contemplates an objective standard that looks to whether a
reasonable or average person would experience severe distress under the circumstances. The
test that has emerged is that distress is sufficiently severe “if no reasonable person could be
expected to endure it[.]”) (citing Restatement (Second) of Torts § 46). According to the
Restatement, severe emotional harm can include “all highly unpleasant mental reactions,
such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin,
disappointment, worry, and nausea.” Restatement (Second) of Torts § 46. However, not all
emotional injuries rise to the level of “severe emotional” distress:

              Complete emotional tranquillity is seldom attainable in this
              world, and some degree of transient and trivial emotional
              distress is a part of the price of living among people. The law
              intervenes only where the distress inflicted is so severe that no
              reasonable [person] could be expected to endure it. The intensity
              and the duration of the distress are factors to be considered in
              determining its severity.

Id.

       The above sources emphasize the lofty burden placed on litigants who are required
to prove “severe emotional harm” as a prima facie element of their case. While we do not

                                             -21-
hold that a petitioning grandparent must prove that the child is likely to suffer harm that no
reasonable child could endure for purposes of grandparent visitation, the above language
emphasizes the exacting burden implied by the General Assembly’s decision to use this
language in the Grandparent Visitation Statute. Indeed, the burden placed on petitioning
grandparents is arguably even more important in the context of grandparent visitation, where
the “severe emotional harm” component is the threshold requirement to ensure that the
parent’s constitutional rights are protected. See Hawk, 855 S.W.2d at 581. In any case, we
need not precisely define the exact circumstances in which a court may find a likelihood of
“severe emotional harm,” as we conclude that Grandparents in this case have failed to submit
evidence to support a finding that the child is likely to suffer substantial harm or any other
harm that could reasonably be categorized as severe, grave, distressing, or extreme. See
Black’s Law Dictionary at 1233.

       Turning to the record in this case, we conclude that Grandparents have failed to meet
their burden to prove that either “substantial harm” or “severe emotional harm” is likely to
occur as a result of the cessation of visitation. Without a showing of either “substantial harm”
or “severe emotional harm,” Grandparents have not met their burden to justify intrusion into
Appellants’ decision to terminate visitation; therefore, the trial court erred in allowing
grandparent visitation. See Hawk, 855 S.W.2d at 581; Tenn. Code Ann. § 36-6-306(b)(1).

       Grandparents first point to testimony from the child’s maternal grandmother that she
believed that the child would likely suffer substantial harm if her relationship with the child
was severed. Clearly, maternal grandmother’s opinion as to harm that might occur if her own
relationship with the child were severed is not relevant to the cessation of the relationship
between the child and Grandparents. As previously stated, the evidence regarding substantial
harm must be “ specific to this child’s relationship with this grandparent.” Green v. Evans,
2012 WL 1107887, at *10 (emphasis added). Hypothetical evidence of the child’s reaction
to the cessation of a relationship with another grandparent undoubtedly fails to meet this
standard.

        Essentially, there are only two instances regarding this child, supported by evidence
in the record, that Grandparents use to support their harm argument. First, Grandparents point
to the testimony of a witness to a number of exchanges between Grandparents and
Appellants, prior to the cessation of visitation. This witness testified that on numerous
occasions the child cried when Grandparents returned the child to Appellants and indicated
that he did not want to leave Grandparents’ care. Next, another witness testified that she saw
Mother and the child at a retail store after the cessation of visitation. When the witness asked
the child about Grandparents, the child became excited and repeated the name “Nana,” which
is how the child refers to Ms. McGarity.



                                              -22-
        In contrast, Mother testified that the child had never mentioned Grandparents once
visitation was terminated and that he exhibited no signs of harm. Further, Mother asserts that
the child would instead be harmed by continued visitation because it would force the child
to confront the fact that his adoptive step-father is not his biological father and may lead to
the revelation that the child’s biological father voluntarily allowed his rights to be terminated.

        We conclude that this evidence was insufficient to meet Grandparents’ significant
burden to show that the child would suffer either substantial harm or severe emotional harm
as a result of the loss of the relationship with Grandparents. Unlike in Angel, there was no
evidence in the record that the child at issue, who was only three years old at the time of trial,
suffered any ill effects due to the cessation of the grandparent-grandchild relationship. While
the child’s negative reaction to the petitioning grandparent in Angel allowed the court to
conclude that the child would suffer feelings of abandonment at the loss of the relationship,
no such evidence exists in this case. The single incident where the child excitedly repeated
the name Nana after Grandparents were mentioned to him fails to rise to the level of
substantial harm contemplated by the Grandparent Visitation Statute. Although the trial court
cited this incident as evidence “of the child’s memory, recall, and emotional connection to
his Nana, who is [Mrs. McGarity,]” as previously stated, a significant relationship or
emotional connection with a petitioning grandparent does not, ipso facto, lead to the
conclusion that the child will be harmed by the loss of the relationship. Instead, the evidence
shows only that the child became excited at the mention of Grandparents, not that he became
inconsolable, or otherwise upset, due to the loss of connection with them. Feelings of
excitement do not rise to the level of other emotions that are customarily associated with
findings of severe emotional harm, such as “grief, shame, humiliation, embarrassment, anger,
chagrin, disappointment, worry, [or] nausea.” See Restatement (Second) of Torts § 46. In
addition, nothing in the record persuades us that the child’s reactions when being exchanged
are evidence that the child will suffer substantial harm if visitation is not granted. Much like
in Mizrahi, there is simply no evidence in the record to support a finding that the child will
likely feel inadequate, abandoned, rejected, that he will lose connection with his heritage, or
that he will suffer economically, if visitation is not granted. In addition, the evidence in this
case is not analogous to the situation presented in Keenan. In Keenan, the child’s mother
tragically died, and the Michigan Court of Appeals concluded that substantial harm would
come to the child if the child was unable to “keep [his mother’s] memory alive.” The court,
therefore, ordered visitation with the maternal grandparents for that purpose. In contrast, in
this case, the child’s biological father voluntarily relinquished his parental rights to the child
and Mr. Jerrolds has assumed the role of the child’s father. Accordingly, we cannot conclude,
as the court did in Keenan, that the child in this case will be substantially harmed by failing
to maintain any relationship or memory of his biological father. Thus, Grandparents have not
shown that the cessation of visitation is likely to cause any substantial harm to the child.
Instead, we must agree with Appellants that the only evidence in the record regarding the risk

                                              -23-
of substantial harm or severe emotional harm is in Appellants’ favor: that the child became
confused and upset by the visitation and that the child may learn that his biological father
voluntarily relinquished his rights to him when he is cognitively unable to understand. Under
these circumstances, we conclude that the evidence preponderates against the trial court’s
finding that Grandparents met their burden to show that the child will likely suffer substantial
harm or severe emotional harm as a result of the loss of the relationship. Without a finding
of severe emotional harm, Grandparent’s have failed to prove the threshold requirement of
substantial harm. Without a showing of substantial harm, the trial court erred in granting
grandparent visitation. The trial court’s ruling granting visitation to Grandparents is,
therefore, reversed.

                                       III. Conclusion

       Based on the foregoing, the judgment of the Chancery Court of Hardin County is
affirmed in part, reversed in part, and remanded for all further proceedings as are necessary
and are consistent with this opinion. Costs of this appeal are taxed one-half to Appellants,
Corbin Jerrolds and Amber Jerrolds, and one-half to Appellees Richard McGarity and Teresa
McGarity, for all of which execution may issue if necessary.




                                                     _________________________________
                                                     J. STEVEN STAFFORD, JUDGE




                                              -24-
