Facts: A child was born to unmarried Parents. For the first four years of the child’s life, Paternal Grandparents (“Grandparents”) cared for the child every week during the day on Tuesday and half the day on Friday. When the child was around 10 months old, he began staying overnight with Grandparents occasionally.

A family dispute ensued, and Parents informed Grandparents that the child would no longer come to their home. However, Grandparents were still allowed to take the child to soccer practice and similar events.

Grandparents saw the child for Christmas, kept him overnight in January, and asked Parents if they could keep him the following week. Parents denied that request.

The following month, Grandparents petitioned for grandparent visitation.

After the petition was filed, Grandparents saw a movie with the child, attended his birthday party, and were allowed to attend his weekly karate classes.

After a trial in which both Grandparents and Mother testified (curiously, Father chose not to testify), the trial court ordered grandparent visitation after finding Parents opposed grandparent visitation, that the child had a significant relationship with Grandparents such that the severance or severe reduction of the relationship was likely to cause severe emotional harm, and grandparent visitation was in the child’s best interest. As a result, Grandparents were awarded regular visitation during weekends, holidays, birthdays, and summer vacations.

Parents appealed.

On Appeal: The Court of Appeals reversed the trial court.

Parental opposition. A threshold requirement for grandparent visitation is proof that grandparent visitation is opposed by or has been severely reduced by the parents.

“Opposed” includes situations where visitation is denied totally and where the frequency or conditions imposed by the parents on visitation are such that it equates to a denial of visitation. Tennessee law also requires existing opposition, not likely future opposition.

The Court agreed with the trial court that parental opposition was shown:

Although Grandparents were able to exercise visitation between August 2018 and February 2019, we find that there was sufficient evidence of opposition. After visiting with the child two times every week for approximately four years, Grandparents were only able to visit with the child three times between August 2018 in February 2019. While they did have these few visits, Parents were consistently communicating that they were opposed to visitation. Parents sent text messages to Grandparents stating that the child would no longer be going to their home, would be fine without them, had enough grown-ups in his life, would not be coming around at all, and would do just fine without them in his life….

[T]he evidence demonstrates Parents opposed grandparent visitation by both word and deed prior to the petition being filed.

Substantial harm. Tennessee law also requires grandparents to show that the loss or severe reduction of the grandparent-child relationship is likely to cause severe emotional harm to the child and pose a danger of substantial harm to the child. Proving a likelihood of “severe emotional harm” requires evidence to support a finding that the child is likely to suffer harm that could reasonably be categorized as severe, grave, distressing, or extreme.

The Court found the proof of substantial harm lacking:

[The trial court] found that severance or severe reduction of the relationship between Grandparents and the child was likely to occasion severe emotional harm to the child and posed a danger of substantial harm to the child. However, our review of the record reveals that the evidence was insufficient to support this conclusion. There was very little testimony on whether the child was actually suffering harm or was likely to suffer harm in the future. Grandmother testified that the child was still happy and healthy and did not show anger or aggression when she did get to see him. She stated that he would cry sometimes when they drop him off after visits because he felt that he did not have enough time with them. She also stated that he would ask questions and express emotions regarding his limited interaction with them. Yet, she admitted that the child was doing great, and she testified that there was no specific evidence that he was suffering severe harm. Mother also testified that she had not noticed any anger or aggression and had no concerns with the child’s behavior. Contrary to Grandmother’s testimony, she stated that she never saw the child cry, become upset, or have a hard time leaving Grandparents when they drop him off after visits. Both Grandfather and Grandmother testified that the relationship with the child was not as close as it had been in the past, but they did not testify as to any harm that had come to the child as a result.

We reiterate that Parents are protected from unwarranted state interference in the parenting process by the substantial harm requirement. Grandparents bear the burden of proving substantial harm or severe emotional harm….

[While] Grandmother testified that the child asked questions and expressed emotions about his time with Grandparents, [] there was no evidence of harm that could be categorized as “severe, grave, distressing, or extreme” or “a real hazard or danger.” The evidence in the record before us was insufficient to support a showing of substantial harm or severe emotional harm.

Proving harm was Grandparents’ burden to bear, and the record demonstrates that they failed to carry that burden.

Finding that the evidence preponderates against the trial court’s finding that the child was likely to suffer substantial harm or severe emotional harm, the Court reversed the trial court’s decision and dismissed the case.

In re Houston D. (Tennessee Court of Appeals, Western Section, August 16, 2022).

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