                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                  ______________________________________________

IN THE MATTER OF:                                                       FILED
                                                    Davidson Juvenile No. 9719-38503
COURTNEY JADE CANOVA,                               C.A. No. 01A01-9803-JV-00113
                                                                     February 25, 1999
MARY WITT LEVRAEA,                            Hon. Andrew J. Shookhoff, Judge
LUKE LEVRAEA,                                                       Cecil Crowson, Jr.
BRENDA CANOVA RIDDLE,                                              Appellate Court Clerk

       Petitioners,

Vs.                                                   DISMISSED AND REMANDED

JENNIFER CRUZ McKELL,

       Respondent.

CAROL DOWNTON, Nashville, Attorney for Petitioners.

ROSEMARY E. PHILLIPS, Goodlettsville, Attorney for Respondent.

                         MEMORANDUM OPINION1
___________________________________________________________________________

TOMLIN, Sp. J.


       This is a grandparents visitation rights case. Mary Witt Levraea, Luke Levraea, and

Brenda Canova Riddle (“Petitioners”) filed suit in the Juvenile Court of Davidson County

against Jennifer Cruz McKell (“Respondent”), seeking to establish visitation rights with

Courtney Jade Canova.       The Levraes are the great-grandparents and Ms. Riddle is the

grandmother of the minor child. Respondent is the child’s mother and custodial parent. The

child was born out of wedlock to Respondent and Garth Bryan Canova, the son and grandson

respectively of the Petitioners. While the parents never married, Garth legitimated the child and

paid child support. Some eighteen months following the birth of the child, Garth was killed in

an automobile accident. Respondent responded and subsequently filed a motion for summary

judgment seeking to have the petition dismissed. Both sides filed supporting affidavits to their

respective pleadings. The trial judge granted Respondent’s motion for summary judgment.



       1
         Rule 10 (Court of Appeals). Memorandum Opinion. -- (b) The Court, with the
concurrence of all judges participating in the case, may affirm, reverse or modify the actions of
the trial court by memorandum opinion when a formal opinion would have no precedential
value. When a case is decided by memorandum opinion it shall be designated
"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any
reason in a subsequent unrelated case.
Although Petitioners have raised two issues on appeal, this Court does not reach either issue as

raised. For the reasons as hereinafter stated, we dismiss and remand this case to the trial court

for such other proceedings as are necessary.

       Petitioners brought this action pursuant to what has been referred to as the “Grandparents

Visitation Rights Act,” entered into law by the legislature effective July 23, 1997, and codified

as T.C.A. § 36-6-306 and 307.

       The pertinent provisions of these applicable code sections are as follows:

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

               (1) Either the father or mother of an unmarried minor child is
               deceased;
               (2) the child’s father and mother are divorced or legally separated;
               (3) The child’s father or mother has been missing for not less than
               six (6) months; or
               (4) The court of another state has ordered grandparent visitation;
               then, the parents of such deceased person or the parents of either
               of such divorced or separated persons or the parents of the
               missing person may be granted reasonable visitation rights to the
               child during its minority by a court of competent jurisdiction
               upon a finding that such visitation rights are in the best interests
               of the minor child, based on the factors in § 36-6-307 (d)(2).

                               *               *               *

       The above code section must be read in connection with T.C.A. § 36-6-307 (Supp. 1998),

which reads as follows:

               36-6-307. Visitation rights of parents adopting relative or
               stepparent. - (a) If a relative or a stepparent adopts a child, the
               general assembly finds that it is sound public policy to provide
               children with the stability and continuity of meaningful
               relationships in their lives. If grandparents have had a sufficient
               existing relationship with a child, a loss of that relationship would
               be a severe emotional and psychological blow to the child, and
               such a loss creates a rebuttable presumption of substantial danger
               to the welfare of the child.

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

               (c) A grandparent shall be deemed to have a sufficient existing
               relationship with a grandchild if:

               (1) The child has resided with the grandparent for at least six (6)
               consecutive months during the two (2) years preceding the filing
               of the petition for visitation rights and neither of the child’s
               parents were living in the same household;

                                                2
              (2) The child and the child’s parents have resided with the
              grandparents for not less than one (1) year ending within the year
              preceding the filing of the petition for visitation rights;

              (3) The grandparent has been a full-time caretaker of the child for
              a period of not less than six (6) consecutive months in two (2)
              years preceding the filing of the petition for visitation rights; or

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

              (d)(1) In a hearing concerning a petition by a grandparent for
              reasonable rights of visitation, the court shall make the following
              findings of fact:

              (A) The grandparent has a sufficient existing relationship, as
              defined in subsection (c); and

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

              (2) In determining the best interests of the child under this
              section, the court shall consider a number of factors, including but
              not limited to the following:

              (A) The length and quality of the prior relationship between the
              grandparent and the child;

              (B) The existing emotional ties of the child to the grandparent;

              (C) The preference of the child if the child is determined to be of
              sufficient maturity to express a preference;

              (D) The effect of hostility between the grandparent and the parent
              on the child manifested before the child, and the willingness of
              the grandparent, except in case of abuse, to encourage a close
              relationship between the child and the parent(s) or guardian(s) of
              the child;

              (E) The good faith of the grandparent in filing the petition;

              (F) If the parents are divorced or separated, the time-sharing
              arrangement that exists between the parents with respect to the
              child; and

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

       On November 4, 1998, a panel of this Court, in an opinion authored by Presiding Judge

W. Frank Crawford, styled Regina Ellison vs. Cherri Ellison, Obion Chancery No. 20,443, C.A.

No. 02A01-9803-CH-00054, declared T.C.A. § 36-6-306 to be an unconstitutional invasion of

privacy rights under the Tennessee Constitution in that the statute allows grandparents

                                               3
reasonable visitation rights upon a finding that grandparent visitation was in the best interest of

the minor child, without first having found the existence of a substantial danger or harm to the

minor child, if there was a cessation of the relationship between grandparents and said minor

child. In so ruling, this Court followed the holding of our Supreme Court in Hawk v. Hawk, 855

S.W.2d 573 (Tenn. 1993) and Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995).

       Under these circumstances, this Court has no option but to follow the earlier ruling by

this Court in Ellison, and dismiss Petitioners’ suit. Therefore, we do not reach or consider the

issues raised.

       This case is remanded to the trial court for such other proceedings as may be necessary.

Costs on appeal are taxed one-half to petitioner and one-half to respondent, for which execution

may issue, if necessary.

                                                       _________________________________
                                                       HEWITT P. TOMLIN, JR.,
                                                       SPECIAL JUDGE

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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