Lovlace v. Copley
| Decision Date | 03 February 2012 |
| Docket Number | No. M2011-00170-COA-R3-CV,M2011-00170-COA-R3-CV |
| Parties | NEAL LOVLACE and NORMA JEAN LOVLACE v. TIMOTHY KEVIN COPLEY and BETH COPLEY |
| Court | Tennessee Court of Appeals |
Direct Appeal from the Chancery Court for Hickman County
No. 06-128-C Robbie T. Beal, Judge
SEPARATE CONCURRENCE AND PARTIAL DISSENT
I agree with much of the majority's well reasoned analysis in this case. However, in some respects, I would use different reasoning to reach the same result, and so must file this separate concurrence. In some other respects, I disagree with the result reached by the majority and so must partially dissent. These are discussed below.
I agree with the majority's conclusion that the Lovlaces are "grandparents" of the child at issue within the meaning of the grandparent visitation statutes. However, as detailed below, I disagree with some of the majority's discussion of the definition of "grandparent" under the statutes.
I also agree with the majority's conclusion that, given the specific language in Tennessee's grandparent visitation statute, the original consent order in this case was not vitiated by Mr. Copley's adoption of the child. In addition, I agree with the majority's holding that the trial court erred in applying the standard applicable to a visitation dispute between parents when it considered the Lovlaces' petition to modify visitation and the Copleys' petition to terminate visitation, and I concur in the majority's holding vacating the trial court's order. As detailed below, however, I diverge somewhat from the majority in its approach to the standard to be applied on remand.
As to whether the Lovlaces are "grandparents" under Tennessee's grandparent visitation statutes, I agree with the majority's holding that Mrs. Lovlace, as the adoptive parent of thechild's biological parent, fits within the statutory definition of "grandparent" in Section 36-6-306(e)(1), in recognition of Tennessee caselaw stating that adoptive parents enjoy the same rights as biological parents. I also agree that Mr. Lovlace, as the spouse of such a grandparent, is considered a grandparent under Section 36-6-306(e)(2).1
However, the majority opinion goes on to include obiter dictum to the effect that the grandparent visitation statute should be construed "expansively" and stating that the fact that the Lovlaces "have enjoyed a close and supportive relationship with the child" factors into the analysis of whether they fit the statutory definition of "grandparent." These assertions do not square with constitutional principles or the language and structure of the grandparent visitation statute.
As noted by the majority, the statutory definition of "grandparent" is prefaced by the phrase "includes, but is not limited to." Clearly this signals that our legislature intended to permit the courts to go beyond the strict confines of the statutory definition. This permits us, for example, to hold that Ms. Lovlace is the equivalent of a "biological grandparent" under Section 36-6-306(e)(1), based on well-settled Tennessee caselaw holding that the relationship between an adoptive parent and child is entitled to the same legal protection as the relationship between a biological parent and child. See Simmons v. Simmons, 900 S.W.2d 682, 684 (Tenn. 1995).
Nevertheless, the majority's assertion that the "including, but not limited to" language is a license to interpret the statute expansively is at odds with constitutional principles. Grandparent visitation statutes must be narrowly construed in order to comport with the state and federal constitutions, because they are in derogation of the parents' fundamental constitutional rights. See, e.g., In Matter of Rupa, 13 A.3d 307, 317 (N.H. 2010). Thus, while the language in Tennessee's statute permits the court to verge slightly beyond the three enumerated subsections defining "grandparent," the Constitution requires us to do so with great prudence.
In the discussion of whether the Lovlaces are "grandparents under the statute, the majority also includes the following:
In addition, the record shows that the Lovlaces have enjoyed a close and supportive relationship with the child since her birth. The child knows theLovlaces as her grandparents, and they have acted as grandparents in their care, support, and love for this child. Given the consistent relationship that has existed between the child and the Lovlaces, we conclude that the trial court's defining the Lovlaces as grandparents under the statute was not outside the scope of the statute, and was not otherwise a contravention of the legislative intent.
The majority cites no authority for considering the quality of the Lovlaces' relationship with the child as part of the analysis of whether they meet the statutory definition, and none exists. It appears to be rooted primarily in sentiment, and is at odds with the language and structure of the grandparent visitation statute. Under the structure of the statute, once the court determines that a party fits the definition of a "grandparent," then he or she must present proof that:
Tenn. Code Ann. § 36-6-306(b)(1). Thus, the quality of the grandparents' relationship with the child features prominently in the analysis of whether visitation is necessary to avert the danger of substantial harm to the child. See also Tenn. Code Ann. § 36-6-306(b)(2) and (3). In contrast, the statutory definition of "grandparent" says only:
Thus, nowhere in the statutory definition of grandparent is there any language indicating that the quality of the relationship is considered in determining whether the petitioners meet the statutory definition. Rather, the structure and language of the statute as a whole show clearly that the court is to first determine whether the petitioners are "grandparents" within the statutory definition. If the court finds that the petitioners do not fit within the statutorydefinition of "grandparent," the inquiry goes no further. Only if the court finds that the petitioners are "grandparents" does the court go on to determine "the presence of a danger of substantial harm to the child," explicitly considering whether the child had a "significant existing relationship" with the petitioning grandparents.
Moreover, this kind of bootstrapping jeopardizes the parents' fundamental right to make parenting decisions for their child. Under this dicta in the majority opinion, any third party who "acted as grandparents" would have the right to petition for visitation pursuant to the grandparent visitation statute. This is clearly contrary to the Court's obligation to respect the parents' constitutional right to raise their child as they see fit.
As to the applicable standard, as noted by the majority, Tennessee's grandparent visitation statute does not address the standard to be used in actions to modify or terminate an existing visitation order. Neither party has cited a Tennessee case establishing such a standard, and we have found none. Consequently, it becomes the job of this Court to fashion the appropriate standard.
The majority begins its analysis of this issue with an extended review of the existing standard for modifying a court-ordered custody and visitation arrangement between the child's parents.2 While the discussion of parent vs. parent actions is not inaccurate, I am concerned that it leaves the reader with the impression that we start with the standard for an action between a child's parents as the baseline and "tweak" it to devise a standard for modifying grandparent visitation. However, the two situations are fundamentally different, as emphasized by our Supreme Court in Smallwood v. Mann, 205 S.W.3d 358 (Tenn. 2006). A grandparent visitation action "is not a contest between equals." Stacy v. Ross, 798 So. 2d 1275, 1280 (Miss. 2001); Smallwood, 205 S.W.3d at 361-63. As stated by the Maryland appellate court:
McDermott v. Dougherty, 869 A.2d 751, 770 (Md. 2005), abrogated on grounds not affecting quoted excerpt by In re Ta'Niya C., 8 A.3d 745, 755-57 (Md. 2010), and In re Rashawn, 937 A.2d 177, 194 (Md. 2007). This principle should be the baseline starting point for any discussion of the standard in a grandparent visitation case. It should remain paramount in every part of the analysis of modification of the grandparents' visitation, termination of visitation, and even contempt issues.
In addition, while the majority includes a lengthy footnote listing cases from other jurisdictions addressing modification of an existing grandparent visitation order, it surprisingly considers none of them in the analysis in the body of the majority opinion. This despite the fact that the majority acknowledges that the standard enunciated by the Tennessee Supreme Court in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), requiring proof of substantial harm in order to grant grandparents visitation with their grandchild over...
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