                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                        Assigned on Briefs November 12, 2014

                                 IN RE CAMRYNE B.

               Appeal from the Juvenile Court for Montgomery County
                    No. VTCV132031       Andrew Jackson, Judge




            No. M2014-00801-COA-R3-JV          - Filed December 16, 2014


The trial court granted grandparent visitation based in large part on the asserted need to
maintain a relationship between the grandchild and her half-sister (who had been adopted by
grandmother). Parents opposed the grandchild’s visitation with her grandparents. The trial
court made no finding that cessation of the relationship between the grandparents and the
grandchild presented a danger of substantial harm to the child. In accordance with Tenn.
Code Ann. § 36-6-306, we reverse.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed

A NDY D. B ENNETT, J., delivered the opinion of the court, in which R ICHARD H. D INKINS, and
W. N EAL M CB RAYER, JJ., joined.

James R. Potter, Clarksville, Tennessee, for the appellants, Melisa I. and Andrew B.

Gregory D. Smith, Clarksville, Tennessee, for the appellees, Celeste and Albert B.

                                         OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

       Melisa I. (“Mother”) and Andrew B. (“Father”) are the parents of Camryne B., born
in November 2004. Mother and Father were never married. Father filed a petition for
legitimation in October 2008, and the parties entered into an agreed permanent parenting plan
establishing parenting time and child support. Celeste B. (“Grandmother”) and Albert B.
(“Grandfather”), (collectively “Grandparents”), are the paternal grandmother and paternal
step-grandfather, respectively, of Camryne. Mother had another child, Makenzie J., born in
June 2000, who was legally adopted by Grandmother in March 2013.

       Grandmother and Grandfather had periods of visitation with Camryne until the
summer of 2012. Disagreements and hostilities developed between Mother and Father and
Grandmother, and Mother and Father decided that it was in Camryne’s best interest not to
have further visitation with Grandmother.

        In May 2013, Grandparents filed a petition for grandparent and sibling visitation
pursuant to Tenn. Code Ann. §§ 36-6-302 and 36-6-306. On September 26, 2013, the trial
court entered an order by default in favor of Grandparents, finding that they had a
“significant existing relationship with” Camryne and that it was “not in the best interest of
the minor child to deny the visitation.” The court went on to order that Grandparents have
visitation with Camryne every third weekend from Friday to Sunday, one week during the
summer, and one day during the Christmas season. The court also made provision for
telephone contact and transportation.

        The default order was set aside by the court on December 18, 2013, on a motion of
Mother and Father. About a week later, Grandparents moved for contempt on the grounds
that the court had ordered Mother and Father to continue visitation pursuant to the default
order until the hearing set for February 28, 2014. The court entered an order on January 22,
2014, in which it clarified that “visitation would continue to take place pursuant to the
Default order . . . until this matter could be heard on February 28, 2014.”

                                        The Hearing

       Grandmother testified that she had stopped seeing Camryne in July or August of 2012.
She thought that the reason she had not been seeing Camryne was that she “didn’t like what
[Father] and [Mother] were playing. Camryne spent most of her time down in Nashville with
[her maternal grandmother], which I don’t mind her being with [her maternal grandmother],
but we were not getting any time with Camryne.”

        Grandmother stated that, before the visits stopped, she would see Camryne every day
before school and after school until Mother got off of work. Before Camryne started to
school, Grandmother testified, they would see her at least one weekend a month. Once she
started school, Camryne would ride the bus to and from school from Grandmother’s house
with Makenzie. According to Grandmother, Makenzie and Camryne were very close.

       Grandmother testified that she had not argued with either parent in front of Camryne.
She stated that she did have concerns about Mother and Father’s parenting of Camryne and
Mother’s failure to pay attention to Makenzie. Grandmother also had concerns about
Mother’s stability, stating that she had lived at twelve different addresses in fourteen years.
Camryne had been in three schools in five years. Grandmother admitted spanking Makenzie
and grabbing her by the hair on one occasion, but denied beating her, slamming her head into
the wall, or throwing her to the ground.

       On cross-examination, Grandmother admitted telling Mother and Father in an e-mail
sent on July 31, 2012, that Camryne could no longer be dropped off at her house for their
convenience, that she would no longer be the drop-off point as contemplated in the parenting
plan, and that she did not want to be put on the school contact list. Grandmother stated: “I
wanted them to do their jobs as parents.”

       Grandmother also admitted that Makenzie took a multitool to school, which included
a two-and-three-eighth-inch blade, and the school took issue with her having what they
considered to be a knife at school. Grandmother further acknowledged that Makenzie set a
curtain on fire.

        Grandfather testified that the relationship between Camryne and Makenzie was a
loving sister relationship. He had not seen Camryne in over two years. Grandfather was a
civilian contractor working in Afghanistan; he had returned home for the trial.

       Grandfather had never seen his wife physically abuse Makenzie. He had never
witnessed any open hostility between Grandmother and Mother or Father in front of the
children, and he had never heard Grandmother speak ill of Mother or Father in front of the
children. He believed it was in the children’s best interest to see Grandmother and to see
him.

      On cross-examination, Grandfather stated that, the last time he went overseas with the
company he was currently working for, he was there for eighteen months. He had been in
Afghanistan nine months this time and would probably be there until November 2014. Thus,
he was away from the home for extended periods of time.

       At this point, the court talked to Makenzie in chambers with the attorneys present.

       The next witness in open court was Jamie De La Rosa, school resources officer at
Cumberland Heights Elementary School. Officer De La Rosa described an incident that
occurred around early October 2013; she was called by the school secretary because
Grandmother was trying to see Camryne, but she was not on the emergency contact card.
The officer escorted Grandmother out of the school, and Mother and Father entered the
building at the same time.

       Shaquanna Downs, a representative from the Department of Children’s Services,



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testified that she closed an investigation against Grandmother as unfounded.1

        Dr. Bernard Ihrig, a psychologist, testified as an expert witness on behalf of Mother
and Father. He performed a forensic evaluation of Camryne. He concluded: “She appears
to be very psychologically healthy, stable. She actually seems quite happy, well adjusted, and
functioning well psychologically.” When asked whether, in his opinion, Camryne was
“suffering serious or severe emotional harm,” Dr. Ihrig responded, “No.”

          Father testified that he and Mother had never had a problem working together under
the parenting plan to co-parent Camryne. When asked what caused the rift between him and
Mother and Grandmother, Father stated that the “final straw that broke the camel’s back was
. . . late July 2012.” Grandmother was upset about the pictures Mother put on Facebook of
their vacation in Florida because they did not include pictures of Makenzie; according to
Father, Grandmother responded by posting Mother and Father’s arrest photos on Facebook.
Father characterized Grandmother’s behavior as disruptive to the family. He felt that she did
not respect his parental rights.

        Father testified that he and Mother had concerns about Makenzie’s behavior at
Grandmother’s home. He stated that, in August of 2012, when he and Mother informed
Grandmother that they did not want Camryne going over to Grandmother’s home any more,
Grandmother was “furious.” He testified that he did not believe it was in Camryne’s best
interest to be going over to Grandmother’s home. He stated that Grandmother “destroyed
this relationship with all of us, and I told her I wasn’t going to do it [go behind Mother’s back
to allow Grandmother to see Camryne].”

        On cross-examination, Father acknowledged that Mother allowed Camryne to go to
Grandmother’s house during kindergarten and first grade. He further admitted that he
understood that Grandmother was supposed to have visitation pending the hearing. He
stated: “It’s my obligation to protect my child, and if that puts me in contempt, then that puts
me in contempt.” Asked why he terminated the relationship between Camryne and
Grandmother, Father stated: “I terminated the relationship because of the controversies that
she would always stir up, as well as other reasons, because she would never respect my
authority as a father to my child as well.” He described Grandmother as “a malicious
woman.” On redirect, Father stated that he believed Grandmother was an emotionally
unhealthy person.

        The next witness was Mother’s sister, Camryne’s aunt (“Aunt”). Aunt testified that


       1
         Mother and Father filed a petition for an order of protection against Grandmother, and this was
reported to the Department of Children’s Services.

                                                   4
she had not seen her niece Makenzie since around July [2012], after the Florida trip. Aunt
was permitted to play a recording of a telephone conversation she had with Makenzie from
May 2013. She testified that Makenzie had made statements to her about Grandmother
hitting her. Aunt stated that Makenzie told her that Grandmother “beat her in the back.”
According to Aunt, there had been a few conversations over a period of a year or so in which
Makenzie had been upset about what Grandmother was doing to her. Aunt last talked to
Makenzie on August 10, 2013.

        Mother testified about her concerns regarding Camryne being at Grandmother’s home.
She stated that she had witnessed Grandmother hitting Makenzie–for example, “smacking
her in the mouth for talking back to her,” taking “a back scratcher and hit[ting] Mackenzie
. . . on the legs with it because she wouldn’t do what [Grandmother] asked her to do.”
Mother stated that she had seen Grandmother grab Makenzie by the hair. If Mother tried to
talk to Grandmother about the appropriateness of these behaviors, Grandmother would say
“it’s her rules and her way of parenting” and that Mother “gave up those rights when [she]
gave up custody of Makenzie to [Grandmother].”

        Mother, Father, and Mother’s husband had discussions about their concerns about
Camryne going over to Grandmother’s house. They all “felt as though it was an unsafe
environment and not in the best interest of Camryne to go over there any longer.” As a
result, in the summer of 2012, they notified Grandmother that Camryne would no longer be
visiting Grandmother’s house. In response, Grandmother sent an e-mail stating that she
would be cutting all ties with them. At the time of the hearing, it had been a year and a half
since Camryne had been to Grandmother’s house. Mother testified that she was “a very
happy little girl.” She was involved in extracurricular activities and was doing “great” in
school. Camryne had not had any behavior problems at school or at home. She had not
asked about Grandmother.

                                    Trial Court’s Decision

      The trial court entered an order on April 7, 2014, in favor of Grandparents. The court
made the following relevant findings:

       That this matter is properly before the Court pursuant to T.C.A. 36-6-306; and,
       That the Court finds that the minor child, Camryne [B.], . . . and the paternal
       grandparents maintained an existing relationship for a period of twelve months
       or more immediately preceding the severance of the relationship; and,

       That the Court finds that the grandparent and the half sister had frequent
       visitation with the child that is the subject of this suit for a period of not less

                                               5
       than one year; and,

       That the Court believes that it is in the best interest of the minor child to order
       grandparent visitation; and,

       That the Court is convinced that it is in the best interest of the minor child that
       she should have visitation with her half sister, [Makenzie], and that little
       contact should exist between the parties as possible in effectuating this
       visitation; . . . .

The court went on to order that Grandparents have visitation with Camryne every third
weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. as well as telephone contact
every other Sunday. Mother and Father were found in willful contempt of the temporary
visitation schedule.

                                       Issues on Appeal

       Mother and Father, the appellants, argue that the trial court erred in (1) awarding
Grandparents visitation under Tenn. Code Ann. § 36-6-306 and (2) finding Mother and
Father in contempt for failure to follow the court’s order for temporary visitation prior to the
hearing. Grandparents assert that the record on appeal is insufficient to allow appellate
review and that the appeal should be dismissed.

                                    S TANDARD OF R EVIEW

        In an appeal of a decision rendered after a bench trial, we review the trial court’s
findings of fact de novo with a presumption of correctness unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993). Moreover, we “give great weight to the trial court’s assessment
of the evidence because the trial court is in a much better position to evaluate the credibility
of the witnesses.” Boyer v. Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007). We
review questions of law de novo with no presumption of correctness. Nelson v. Wal-Mart
Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                                           A NALYSIS

                                               1.

       A parent has a fundamental right to the care, custody, and control of his or her child.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170,


                                               6
174 (Tenn. 1996). Consequently, the state may interfere with parental rights only if there is
a compelling state interest. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer,
455 U.S. 745 (1982)). Our Supreme Court has held that the need to protect a child from
substantial harm constitutes a compelling state interest sufficient to justify interference with
parental decisions. See Hawk v. Hawk, 855 S.W.2d 573, 582 (Tenn. 1993); Hale v.
Culpepper, No. M2002-01955-COA-R3-CV, 2003 WL 22994294, at *4 (Tenn. Ct. App. Dec.
22, 2003) (discussing Hawk). The United States Constitution and the Tennessee Constitution
prohibit courts from assuming that a relationship between a grandparent and a child always
benefits the child. See Troxel v. Granville, 530 U.S. 57, 66-72 (2000); Hawk, 855 S.W.2d
at 577, 581-82.

       Tennessee Code Annotated section 36-6-306(b)(1) provides:

       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 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.

Tennessee Code Annotated section 36-6-306 was amended in 2000 to include the threshold
requirement that there be a danger of substantial harm to the child. Tenn. Code Ann. § 36-6-
306(b)(1); see Culpepper, 2003 WL 22994294, at *5. It is only after there has been a finding
of a danger of substantial harm to the child that the court proceeds to determine whether
grandparent visitation is in the child’s best interests. Tenn. Code Ann. § 36-6-306(c). The
burden of proof is on the grandparents to show a danger of substantial harm. See McGarity
v. Jerrolds, 429 S.W.3d 562, 573 (Tenn. Ct. App. 2013).

       Although the circumstances that constitute substantial harm cannot be precisely
defined, this court has offered the following guidelines:

       [T]he use of the modifier “substantial” indicates two things. First, it connotes

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        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 v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted) (quoted with
approval in McGarity, 429 S.W.3d at 573; Culpepper, 2003 WL 22994294, at *7).
Moreover, “[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, No. M2001-
00276-COA-R3-CV, 2012 WL 1107887, at *11 (Tenn. Ct. App. Mar. 30, 2012); see Angel
v. Nixon, No. M2010-00554-COA-R3-CV, 2010 WL 4483915, at *3 (Tenn. Ct. App. Nov.
8, 2010). For an appellate court 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.”
McGarity, 429 S.W.3d at 577.

        In the present case, the trial court failed to adhere to the required statutory analysis.
There was no finding that there was a danger of substantial harm to Camryne. Rather, the
trial court based its decision largely upon the need to maintain the relationship between
Camryne and her half-sister, Makenzie, a consideration not authorized under Tenn. Code
Ann. § 36-6-306. Moreover, the record in this case does not contain evidence that Camryne
was in danger of substantial harm due to the cessation of the relationship with Grandparents.2
Mother and Father presented evidence that Camryne is a well-adjusted child who was not
suffering serious emotional harm and that Mother and Father had sound reasons for
terminating her relationship with Grandmother. To order grandparent visitation without a
finding of substantial harm violates Tenn. Code Ann. § 36-6-306 and the fundamental right
of parents to raise their children as they see fit. See Troxel, 530 U.S. at 66-72; Hawk, 855
S.W.2d at 577-82.

                                                      2.

      The other issue that needs to be addressed is the trial court’s contempt finding against
Mother and Father.
      In its April 7, 2014 final order, the trial court held Mother and Father in contempt for


        2
          Grandparents’ argument that the record on appeal is incomplete fails. The only missing item they
identify is a transcript of the meeting that occurred in chambers between the trial court and Makenzie, and
the attorneys for both sides. Grandparents neither claim that a transcript of this meeting exists nor assert any
reason that it would bear on the issue of a danger of substantial harm to Camryne due to the cessation of a
relationship with them.

                                                       8
failing to allow Grandparents visitation with Camryne pursuant to a temporary order (dated
January 10, 2014) that was in place pending the final hearing in this matter. They were
ordered to spend ten days in jail for this contempt, but execution was stayed pending their
compliance with the court’s order.3

       We review a trial court’s decision to impose contempt sanctions under the abuse of
discretion standard. Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d
346, 358 (Tenn. 2008). A trial court abuses its discretion when “‘it applies an incorrect legal
standard, or reaches a decision which is against logic or reasoning that causes an injustice to
the party complaining.’” Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App. 2007)
(quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). We review the trial court’s
factual findings with a presumption of correctness unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); Konvalinka, 249 S.W.3d at 357.

       Awarding Grandmother visitation with Camryne pending the final hearing, the trial
court did not make the findings necessary under Tenn. Code Ann. § 36-6-306. Mother and
Father were opposed to the visitation. Without a finding of substantial harm, the court could
not constitutionally order visitation with Grandmother. See Hawk, 855 S.W.2d at 582.
Therefore, the court applied an erroneous standard in awarding visitation to Grandmother and
abused its discretion in imposing contempt sanctions for violation of the temporary visitation
order.

                                               C ONCLUSION

       The judgment of the trial court is reversed. Costs of the appeal are assessed against
the appellees, and execution may issue if necessary.




                                                                        _________________________
                                                                        ANDY D. BENNETT, JUDGE




        3
         In light of the fact that this Court has reversed the trial court’s order of April 7, 2014, Mother and
Father are unable to be in “compliance” with that order.

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