Opinion

In Re Houston D.

Court: Court of Appeals of Tennessee
Filed: Aug 16, 2022
Status: Published
On the bench: Judge Carma Dennis McGee
Cited by: 0 cases
Authority: More cited than 1.2%

“Without a showing of either ‘substantial harm’ or ‘severe emotional harm,’ Grandparents have not met their burden to justify intrusion into [Parents’] decision to terminate visitation . . . .”

How later courts described this case

“Without a showing of either ‘substantial harm’ or ‘severe emotional harm,’ Grandparents have not met their burden to justify intrusion into [Parents’] decision to terminate visitation . . . .”
“Jurisdiction is tersely defined . . . as, ‘the power to hear and determine a cause.’ Or ‘the right to adjudicate concerning the subject-matter in the given case.’”
holding that the juvenile court lacked jurisdiction under a previous version of the statute
“A statute is ambiguous if the statute is capable of conveying more than one meaning.”

Written by the judges who cited it.

The opinion

08/16/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 28, 2022 Session

IN RE HOUSTON D.

Appeal from the Juvenile Court for Tipton County

No. 19-JV-37 William A. Peeler, Judge

___________________________________

No. W2021-00979-COA-R3-JV

___________________________________

This appeal involves a petition for grandparent visitation filed by the paternal grandparents.

The juvenile court granted the petition and the parents appeal. We reverse and dismiss the

case.

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

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and J. STEVEN STAFFORD, P.J., W.S., joined.

Rachel K. Witherington, Covington, Tennessee, for the appellants, Randall H. D. and

Megan B. D.

Julie C. Bartholomew, Somerville, Tennessee, for the appellees, Randall D. and Holly D.

OPINION

I. FACTS & PROCEDURAL HISTORY

This is a dispute between a child’s parents and paternal grandparents regarding

grandparent visitation. The child’s parents are Randall H. D. and Megan B. D. (“Father”

and “Mother” or, collectively, “Parents”). The child’s paternal grandparents are Randall

D. and Holly D. (“Grandfather” and “Grandmother” or, collectively, “Grandparents”).

In July 2014, Houston D. was born to Parents, who were unmarried at the time.

From shortly after his birth until about August 2018, Grandparents provided care for the

child approximately two times per week. The child would stay with them all day on

Tuesdays and a half-day on Fridays. When the child was about ten months old, he began

staying overnight with Grandparents on occasion. However, Parents ceased these

particular visits in August 2018 after an argument about Father’s brother (“the paternal

uncle”). The paternal uncle, who was approximately 18 years old at the time and still

residing with Grandparents, had informed the family that he was gay. The paternal uncle

had met a paramour online who was from another state. Afterward, there was a “big

ordeal” when the paramour visited the paternal uncle in Grandparents’ home, although it

was not in the presence of the child. This led to the parties having a conversation about

the situation. Parents apparently did not want the child to be around the paramour, and

therefore the child was not allowed to be at Grandparents’ home when the paramour was

present. Grandmother later testified that at one point she asked Parents if the child could

stay downstairs in their home while the paternal uncle and his paramour remained upstairs,

but Father did not agree to this.

Grandmother admittedly understood why Parents had concerns because the

paramour was a stranger that the paternal uncle had met online. Thus, Grandparents agreed

to follow Parents’ wishes in order to continue their relationship with the child, but Parents

still did not allow the child to resume his visits at Grandparents’ home. On August 20,

2018, Parents sent a text message to Grandparents stating that the child would no longer

be going to Grandparents’ home. Around this time, the paternal uncle moved out of

Grandparents’ home in the hope that Parents would allow the child to continue to have a

relationship with Grandparents. Several days later, Grandparents were able to exercise

visitation when they took the child to soccer practice. Nevertheless, according to

Grandmother, the paternal uncle’s move caused a big disruption in the family and the

parties’ relationship worsened. According to Parents, Grandmother blamed Father for

causing the paternal uncle to move out. Mother testified that this was ultimately the reason

why she and Father decided that the child was not going to visit Grandparents’ home on

Tuesdays and Fridays anymore. Moreover, she stated that Grandparents did not attend

Parents’ wedding in December 2018.

In November 2018, Father had a verbal altercation with his brothers regarding their

presence at his upcoming wedding. This resulted in Father breaking a window at

Grandparents’ home. Afterward, a glass company sent Parents a bill for the broken

window, which caused further problems between the brothers. On December 5, 2018,

Grandfather sent a text message to Parents asking when he and Grandmother could visit

with the child. However, Parents responded with several comments: “he will be just fine

without y’all”; “he’s got enough grownups in his life”; “he won’t be coming around at all”;

and “he’ll do better without you in his life.” Despite the parties’ differences, Grandparents

were able to spend time with the child on December 23, 2018, to celebrate Christmas.

Grandparents also saw the child in January 2019, when he stayed overnight with them at

their home. Grandfather then sent a text message to Parents asking to keep the child during

the following week, but Parents responded by stating that “with all that has happened,

probably not. This is working for us.”

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In February 2019, Grandparents filed a petition for grandparent visitation. Parents

filed an answer to the petition in May 2019. Around this time, Grandmother sent a text

message to Father asking if she and Grandfather could see the child on the weekend, to

which Father replied, “Write me a check for 3k to pay my lawyer.” The parties attempted

mediation in May 2019, but they failed to reach an agreement. Despite failing to reach an

agreement, Grandparents were still allowed to visit with the child some during the summer

of 2019. They saw a movie with the child and attended his birthday party. Beginning in

September 2019, they were also allowed to attend the child’s weekly karate classes and

sometimes spend time with him afterward. In December 2019, however, Parents began to

limit Grandparents’ time with the child after karate classes. They then ended these visits

entirely in July 2020 after Grandparents took the child to their home when Parents asked

them not to do so.

The case ultimately proceeded to trial in September 2020. Grandmother,

Grandfather, and Mother testified at trial; however, Father elected not to testify.1 In July

2021, the juvenile court entered an order finding that Parents opposed grandparent

visitation. Additionally, the court found that the child had such a significant existing

relationship with Grandparents that severance or severe reduction of their relationship was

likely to occasion severe emotional harm to the child and posed a danger of substantial

harm to the child. After considering the factors set forth in Tennessee Code Annotated

section 36-6-307, the court found that it was in the best interests of the child to have

visitation with Grandparents. The court concluded that “it must balance the rights of the

grandparents to visit their grandson, as detailed in Tennessee Code Annotated [section] 36-

6-306, with the rights of the parents’ constitutional right to parent their child, pursuant to

Article I, Section 8 of the Tennessee Constitution.” Therefore, the court awarded visitation

to Grandparents, which allotted time for visitation during weekends, holidays, birthdays,

and summertime. The court also ordered that notice should be provided to Grandparents

of the child’s extracurricular and school activities and that Grandparents could exercise

additional visitation if the parties mutually agreed to it and reduced it to writing.

Thereafter, Parents timely filed their appeal.2

Upon conclusion of Grandparents’ proof, counsel for Parents made a motion for a “directed

verdict” and argued that Grandparents had failed to carry their burden of proof concerning specific

emotional harm to the child. However, the juvenile court denied the motion. Although the record reflects

that counsel for Parents moved for a “directed verdict,” we note that the motion should have been

characterized as a motion for dismissal pursuant to Tennessee Rule of Civil Procedure 41.02.

After their appeal was filed, Parents filed a motion for stay pending appeal. They argued that it

would be in the child’s best interests to stay the enforcement of the order granting specific visitation with

the child because the child had not seen Grandparents in over a year. Grandparents filed a response and

memorandum of law opposing the motion. They stated that they had attempted to contact and exercise

visitation pursuant to the court’s order, but their efforts were either disregarded or rebuffed by Parents.

They noted that Father had responded to one of their requests by stating, “Don’t ever show up over here

like that again. You ain’t welcome over here. You don’t have rights to s**t . . . . I’m the daddy of Houston

and that’s how it’s going to be. Don’t ever come over here again[.]” They also filed affidavits to support

their response. After a hearing on the matter, the juvenile court denied Parents’ motion.

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II. ISSUES PRESENTED

Parents present the following issues for review on appeal, which we have slightly

restated:

1. Whether the juvenile court correctly applied the legal standard as required by

Tennessee Code Annotated section 36-6-306(a) to find that Parents opposed

visitation between Grandparents and the child, or severely reduced visits between

Grandparents and the child; and

2. Whether the juvenile court correctly applied the legal standard as required by

Tennessee Code Annotated section 36-6-306(b)(1) to find that cessation or severe

reduction of the relationship between Grandparents and the child would cause

substantial harm or severe emotional harm to the child.

For the following reasons, we reverse the decision of the juvenile court and dismiss the

case.

III. STANDARD OF REVIEW

On appeal, “[w]e review the trial court’s findings of fact de novo upon the record

with a presumption of correctness unless the preponderance of the evidence is otherwise.”

Coleman v. Olson, 551 S.W.3d 686, 694 (Tenn. 2018) (citing Tenn. R. App. P. 13(d)).

Furthermore, “[w]e defer to the trial court’s determination of witness credibility because

the trial judge could observe the witnesses’ demeanor and hear in-court testimony.” Id.

(citing King v. Anderson Cnty., 419 S.W.3d 232, 245-46 (Tenn. 2013)).

IV. DISCUSSION

A. Jurisdiction

This appeal involves the application of Tennessee Code Annotated section 36-6-

306, i.e., the Grandparent Visitation Statute. As a threshold issue, we address sua sponte

whether the juvenile court properly exercised subject matter jurisdiction to consider the

petition for grandparent visitation in this case. See Clark v. Johnson, No. E2017-01286-

COA-R3-CV, 2018 WL 2411203, at *5 (Tenn. Ct. App. May 29, 2018) (addressing sua

sponte whether the chancery court properly exercised subject matter jurisdiction to

consider the grandparents’ petition upon transfer from the juvenile court when the petition

alleged dependency and neglect and no resolution of such an allegation had been

adjudicated in the juvenile court). “Appellate courts must consider subject matter

jurisdiction even if parties fail to raise or preserve the issue.” Lovlace v. Copley, 418

S.W.3d 1, 17 (Tenn. 2013); see Tenn. R. App. P. 13(b).

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Although it was not presented as an issue by either party on appeal, jurisdiction was

a question briefly raised by the juvenile court judge at the beginning of trial. Counsel for

Grandparents and the judge discussed the issue at length. The judge stated, “the Juvenile

Court normally is not involved in this. And it’s sort of a unique issue here where we had

a child born out of wedlock, then the [parents] got married. And what that does, that sort

of wipes all that away. The child is legitimated by virtue of the marriage, and that’s . . . a

twist . . . .” Counsel for Grandparents responded, “we specifically filed this in Juvenile

Court . . . because we thought that the statute was directing us to do that because it doesn’t

talk about a child born out of wedlock that has not been legitimated.” The judge then

stated, “Okay. Well, I think chancery or circuit could have heard it, but it’s here. And . . .

the reason I was raising the issue is because I didn’t want all of us to spend the afternoon

arguing about this, and then if there’s an appeal,” the Court of Appeals may determine that

the juvenile court did not have jurisdiction. The judge concluded that “[i]t’s muddy

enough” and determined that it should go ahead and proceed with the trial.

On appeal, this Court raised the question again at oral argument. We requested

additional briefing on the issue, and both parties have since submitted their briefs. Under

the circumstances of the case, the precise question is whether the juvenile court properly

exercised subject matter jurisdiction, pursuant to the Grandparent Visitation Statute, to

consider the petition for grandparent visitation when the child was born out of wedlock and

the child’s parents subsequently married.

i. Subject Matter Jurisdiction

It is well-established that “[s]ubject matter jurisdiction relates to a court’s authority

to adjudicate a particular type of case or controversy brought before it.” In re Estate of

Trigg, 368 S.W.3d 483, 489 (Tenn. 2012) (citing Osborn v. Marr, 127 S.W.3d 737, 739

(Tenn. 2004); Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)); see Standard

Sur. & Cas. Co. of New York v. Sloan, 173 S.W.2d 436, 440 (Tenn. 1943) (“Jurisdiction is

tersely defined . . . as, ‘the power to hear and determine a cause.’ Or ‘the right to adjudicate

concerning the subject-matter in the given case.’”) (citation omitted). “Subject matter

jurisdiction depends on the nature of the cause of action and the relief sought, see Landers

v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994), and can only be conferred on a court by the

constitution or legislative act.” Chapman v. DaVita, Inc., 380 S.W.3d 710, 712 (Tenn.

2012); see Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977). Without jurisdiction, the

orders and judgments entered by courts over the subject matter of a dispute are void. In re

Estate of Trigg, 368 S.W.3d at 489 (citing Brown v. Brown, 281 S.W.2d 492, 497 (Tenn.

1955)). As such, an issue concerning a court’s subject matter jurisdiction is considered a

threshold inquiry and should be resolved at the earliest possible opportunity. Id. (citing

Redwing v. Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn.

2012)). “A determination of subject matter jurisdiction involves questions of law;

therefore, rulings on such questions are reviewed de novo on appeal, without any

presumption of correctness.” Johnson v. Hopkins, 432 S.W.3d 840, 844 (Tenn. 2013)

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(citing In re Estate of Trigg, 368 S.W.3d at 489); see also Lovlace, 418 S.W.3d at 17;

Chapman, 380 S.W.3d at 712-13.

Here, the question of whether subject matter jurisdiction exists in the juvenile court

depends upon statutory construction. “Unlike circuit or chancery courts, which are courts

of general jurisdiction, juvenile courts in Tennessee are courts of limited jurisdiction.” In

re D.Y.H., 226 S.W.3d 327, 330 (Tenn. 2007) (footnote omitted) (citing Stambaugh v.

Price, 532 S.W.2d 929, 932 (Tenn. 1976)). Given that the juvenile courts did not exist at

common law and are not included in Tennessee’s Constitution, “[t]hey are entirely

creatures of statute.” State ex rel. Whitley v. Lewis, 244 S.W.3d 824, 830 (Tenn. Ct. App.

2007); see Tenn. Code Ann. § 37-1-101, et seq. Therefore, “[j]uvenile courts may exercise

only such jurisdiction and powers as have been conferred on them by statute.” In re D.Y.H.,

226 S.W.3d at 330 (citing In re S.L.M., 207 S.W.2d 288, 296 (Tenn. Ct. App. 2006)

(citation omitted)). Like the determination of subject matter jurisdiction, “[s]tatutory

construction is also a question of law to which de novo review applies on appeal.” Hopkins,

432 S.W.3d at 844 (citing Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012);

Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011)).

ii. Statutory Construction

We now set forth the rules of statutory construction. Foremost, “[t]he cardinal rule

of statutory construction is to effectuate legislative intent, with all rules of construction

being aides [sic] to that end.” Spires v. Simpson, 539 S.W.3d 134, 143 (Tenn. 2017)

(quoting Browder v. Morris, 975 S.W.2d 308, 311 (Tenn. 1998)); see Beard v. Branson,

528 S.W.3d 487, 496 (Tenn. 2017). The rules for statutory construction have been

summarized by our Supreme Court as follows:

When interpreting a statute, courts must ascertain and give effect to the

legislative intent without restricting or expanding the statute’s intended

meaning. Our task is to examine the text of the statute and, if the language

used is unambiguous, we simply apply the plain meaning of the words used

in the statute. As we recently observed, courts must (1) give these words

their natural and ordinary meaning, (2) consider them in the context of the

entire statute, and (3) presume that the General Assembly intended to give

each of these words its full effect. Every word in a statute is presumed to

have meaning and purpose. If, after examining the text of the statute, it

becomes clear the statute is ambiguous, we may reference the broader

statutory scheme, the history of the legislation, or other sources to discern its

meaning. However, these non-codified external sources cannot provide a

basis for departing from clear codified statutory provisions.

Lovlace, 418 S.W.3d at 18 (quoting Garrison v. Bickford, 377 S.W.3d 659, 663 (Tenn.

2012) (citations and internal quotation marks omitted)).

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However, our Supreme Court has noted that “there is no reliable tool for

determining whether a statute is ambiguous.” Coffee Cnty. Bd. of Educ. v. City of

Tullahoma, 574 S.W.3d 832, 845 (Tenn. 2019); see Bryant v. HCA Health Servs. of N.

Tenn., Inc., 15 S.W.3d 804, 809 (Tenn. 2000) (“A statute is ambiguous if the statute is

capable of conveying more than one meaning.”). “[T]here are theories that say what to do

when a statute is ambiguous, but there are no theories that help determine whether a statute

is ambiguous . . . . The ‘magic wand of ipse dixit’ is the standard tool for deciding such

matters . . . .” Id. (quoting Ward Fansworth et al., Ambiguity About Ambiguity: An

Empirical Inquiry into Legal Interpretation, 2 J. Legal Analysis 257, 275-76 (2010). On

this subject, it has been observed that “there is often no good or predictable way for judges

to determine whether statutory text contains ‘enough’ ambiguity to cross the line beyond

which courts may resort to . . . legislative history [or other tools of construction] . . . .” Id.

(quoting Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118,

2136-37 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014))) (footnote

omitted). Our Supreme Court has expounded on the topic of ambiguity by stating the

following:

In determining whether statutory language is ambiguous, courts are not to

put on blinders to all considerations outside the specific text in question. In

all cases involving statutory construction, judges must look not only at “the

language of the statute,” but also “its subject matter, the object and reach of

the statute, the wrong or evil which it seeks to remedy or prevent, and the

purpose sought to be accomplished in its enactment.” Spires, 539 S.W.3d at

143 (quoting [State v.] Collins, 166 S.W.3d [721,] 726 [(Tenn. 2005)])

(citation omitted) (internal quotation marks omitted). Furthermore, statutes

should not be interpreted in isolation. The overall statutory framework must

be considered, and “[s]tatutes that relate to the same subject matter or have a

common purpose must be read in pari materia so as to give the intended

effect to both.” In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015).

Depending on the circumstances of a given case, consideration of the

statute’s purpose, its evolution over the course of time, and a longstanding

interpretation by the affected parties may be needed to properly evaluate

whether a proffered alternate interpretation is “a nonsensical or clearly

erroneous interpretation of a statute.” Powers v. State, 343 S.W.3d 36, 50

n.20 (Tenn. 2011) (discussing ambiguity).

Id. at 845-46. As such, “[a]ny initial perception on whether a statute appears ambiguous

should not be used in a mechanistic manner that disregards interpretive information.” Id.

at 845.

iii. Statutory Authority

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As previously stated, a juvenile court “may exercise only such jurisdiction and

powers as have been conferred on [it] by statute.” In re D.Y.H., 226 S.W.3d at 330 (citing

In re S.L.M., 207 S.W.2d at 296 (citation omitted)). The Legislature has provided the

juvenile court with exclusive original jurisdiction over certain matters, which are

enumerated in Tennessee Code Annotated section 37-1-103. Furthermore, the Legislature

has provided the juvenile court with concurrent jurisdiction over certain matters, which are

enumerated in Tennessee Code Annotated section 37-1-104. Particularly, section 37-1-

104 provides:

(f) Notwithstanding any law to the contrary, the juvenile court has concurrent

jurisdiction with the circuit and chancery court of proceedings to establish

the paternity of children born out of lawful wedlock and to determine any

custody, visitation, support, education or other issues regarding the care and

control of children born out of wedlock. The court further has the power to

enforce its orders. Nothing in this subsection (f) shall be construed as vesting

the circuit and chancery court with jurisdiction over matters that are in the

exclusive jurisdiction of the juvenile court under § 37-1-103.

Tenn. Code Ann. § 37-1-104(f) (emphasis added). Aside from these provisions, the

Legislature has specifically provided the juvenile court with jurisdiction in Tennessee Code

Annotated section 36-6-306 to consider petitions for grandparent visitation. The current

version of the statute provides in pertinent part as follows:

(a) Any of the following circumstances, when presented in a petition for

grandparent visitation to the circuit, chancery, general sessions courts with

domestic relations jurisdiction, other 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 . . . or if the grandparent visitation has been

severely reduced by the custodial parent or parents . . . [.]

Tenn. Code Ann. § 36-6-306(a) (emphasis added). This limitation set out in section 36-6-

306(a) governs the jurisdiction of the juvenile court to consider petitions for grandparent

visitation. See Smallwood v. Mann, 205 S.W.3d 358, 364 (Tenn. 2006) (holding that the

juvenile court lacked jurisdiction under a previous version of the statute). Therefore, in

order for a juvenile court to properly exercise jurisdiction to consider a petition for

grandparent visitation, the child(ren) involved in the matter must be “born out of wedlock.”

Tenn. Code Ann. § 36-6-306(a).

iv. Application

Grandparents contend that the language “children born out of wedlock” is plain and

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unambiguous. Parents argue that both the chancery court and the juvenile court would

have concurrent jurisdiction under the circumstances. Parents contend that one could

reasonably analyze this statute and determine that the juvenile court was the proper forum

and had subject matter jurisdiction because the fact is the child was born out of wedlock.

Yet, they equally contend that one could reasonably analyze this statute and come to the

different conclusion that the chancery court was the proper forum because the parents

subsequently married. Given that Parents’ argument proposes two different interpretations,

it suggests that the statute is ambiguous.

The supplemental briefs filed by both parties also discuss the Grandparent Visitation

Statute’s prior amendment relative to jurisdiction and the Tennessee Supreme Court’s

holding from Smallwood. In Smallwood, our Supreme Court was faced with a prior version

of the Grandparent Visitation Statute, which provided that a petition for grandparent

visitation could be heard in “circuit or chancery court.” Smallwood, 205 S.W.3d at 364.

In a footnote, the Court expressed concern over the fact that the statute did not give the

juvenile court jurisdiction to consider a petition for grandparent visitation, particularly

when “[j]uvenile courts are generally deemed not only the court with jurisdiction over all

matters involving children whose parents are not married, but also the court most suited to

preside over such issues.” Id. at 365 n.8. The Court noted that “considerations of judicial

economy and the avoidance of the duplication of proceedings appear compromised by the

removal of grandparent visitation petitions from juvenile court when concurrent

jurisdiction of other matters relating to the child’s custody and visitation remains there

under section 37-1-104(f).” Id.; see Tenn. Code Ann. § 37-1-104(f) (2005) (giving juvenile

court concurrent jurisdiction over paternity, custody, visitation, support, education, and

“other issues regarding the care and control of children born out of wedlock”). The Court

further noted that it was “not at liberty to ignore the plain meaning of a statute; however,

if the Legislature did not intend to remove jurisdiction for grandparent visitation from

juvenile courts in these cases, it may want to revisit this issue.” Id.; see, e.g., In re C.K.G.,

173 S.W.3d 714, 730 n.9 (Tenn. 2005) (“[C]oncerning a variety of issues, this Court has

invited legislative action or has reserved lawmaking as more appropriate for the

legislature.”). Perhaps in response to this comment in Smallwood, the Legislature amended

the Grandparent Visitation Statute effective July 1, 2007, to substitute “circuit or chancery

court” with the following language: “circuit, chancery, general sessions courts with

domestic relations jurisdiction or juvenile court in matters involving children born out of

wedlock.” See 2007 Pub. Acts., ch. 22 § 1 (emphasis added). It is clear from this

amendment that the Legislature intended for the juvenile court to have jurisdiction over

petitions for grandparent visitation involving children born out of wedlock. In this case,

what appears to be disputed is whether that jurisdiction remains when a child is born out

of wedlock and the child’s parents subsequently marry.3

Following the 2007 amendment to the Grandparent Visitation Statute, this Court decided a case

involving a petition for grandparent visitation filed in juvenile court in 2013, where the subject child was

born out of wedlock in 2004 and legitimated in 2008. In re Camryne B., No. M2014-00801-COA-R3-JV,

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After examining the text of the Grandparent Visitation Statute, we conclude that it

is unambiguous. “[T]his Court must presume that the legislature says in a statute what it

means and means in a statute what it says.” Kyle v. Williams, 98 S.W.3d 661, 664 (Tenn.

2003) (citing Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803 (Tenn. 2000)).

Adhering to that presumption, the Legislature, by using the language “children born out of

wedlock,” and nothing more or less, was clear. The Grandparent Visitation Statute does

not indicate that a subsequent marriage alters the child’s circumstance at his birth for

purposes of jurisdiction in the juvenile court. See Tenn. Code Ann. § 36-6-306(a). The

Grandparent Visitation Statue does not reference the marital status of a child’s parents other

than at the time the child was born. See id. We have referred to a child who is not born

out of wedlock as one who is born “inside the bounds of marriage.”4 McVay v. Blen, No.

02A01-9508-JV-00183, 1996 WL 729911, at *3 (Tenn. Ct. App. Dec. 19, 1996) (citations

omitted). Here, this child was not born inside the bounds of marriage because Parents were

not married when he was born, and therefore the child was “born out of wedlock.”5 Thus,

2014 WL 7181345, at *1 (Tenn. Ct. App. Dec. 16, 2014). Unlike the case at bar, the child’s parents in In

re Camryne B. never married; rather, the child was later legitimated after father filed a petition for

legitimation. Id. Regardless, this Court did not address the issue of whether the juvenile court retained

subject matter jurisdiction when the child was born out of wedlock but later legitimated, and we proceeded

to decide the case on the merits. Id. at *4-6. Though we did not address the issue of the juvenile court’s

jurisdiction in In re Camryne B., we think that the case is at least noteworthy for that very reason. We keep

in mind, however, that “we should not assume that subject matter jurisdiction existed based on the fact that

the issue was not addressed.” Memphis Bonding Co., Inc. v. Crim. Ct. of Tenn. 30th Dist., 490 S.W.3d 458,

467 (Tenn. Ct. App. 2015).

We have also referred to a child not born out of wedlock as a “marital child” and a child born out

of wedlock as a “non-marital child.” See In re Paisley H., No. E2020-00174-COA-R3-JV, 2020 WL

5496679, at *3 (Tenn. Ct. App. Sept. 10, 2020) (explaining that the Grandparent Visitation Statute provides

that a petition for grandparent visitation may be filed in the juvenile court in matters involving “non-marital

children”); In re Lachlan B., No. E2019-01698-COA-R3-CV, 2020 WL 3542176, at *1 (Tenn. Ct. App.

June 30, 2020) (addressing a trial court’s decision to change the “non-marital children’s” surname); In re

Donovyn B.H., No. W2013-02268-COA-R3-JV, 2014 WL 2069339, at *2-3 (Tenn. Ct. App. May 16, 2014)

(discussing the differences in the juvenile court’s jurisdiction when marital children versus non-marital

children are involved).

Although chapter 6 of Title 36 does not define “children born out wedlock,” we note that

Tennessee Code Annotated section 36-2-302, which concerns parentage and legitimation, defines “[c]hild

born out of wedlock” as “a child born to parents who are not married to each other when the child was

born[.]” Tenn. Code Ann. § 36-2-302(1) (emphasis added). However, the definition’s usage is limited to

chapter 2 of Title 36 by the language “[a]s used in this chapter . . . .” Tenn. Code Ann. § 36-2-302.

Additionally, Tennessee Code Annotated section 31-2-105 defines “a person born out of wedlock” for the

purposes of intestate succession, but there is no correlation between this statute and the Grandparent

Visitation Statute.

We have construed the intent of the legislature in its use of the phrase “child not born in lawful

wedlock” in the past, but it was in the context of legitimation and whether that phrase applied to just a child

born to an unmarried woman or to both a child born to an unmarried woman and a child born to a woman

who was married to someone other than the child’s biological father. See State ex rel. Cihlar v. Crawford,

39 S.W.3d 172, 183 (Tenn. Ct. App. 2000); Cunningham v. Golden, 652 S.W.2d 910, 912-13 (Tenn. Ct.

App. 1983) (superseded by statute).

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this was a matter where the petition for grandparent visitation could be filed in juvenile

court. See Tenn. Code Ann. § 36-6-306(a). Concluding otherwise would be “a forced

interpretation that would extend[, or restrict,] the meaning of the language . . . .” State v.

Welch, 595 S.W.3d 615, 621-22 (Tenn. 2020) (quoting Carter v. Bell, 279 S.W.3d 560,

564 (Tenn. 2009)). Here, we would frustrate legislative intent and restrict the meaning of

the language by holding that the juvenile court lacked jurisdiction to consider the subject

petition when the child was born out of wedlock and then Parents subsequently married.

Because we find that the statute is clear, “we apply the plain meaning without

complicating the task.” State v. McNack, 356 S.W.3d 906, 909 (Tenn. 2011) (citing

Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004)). Accordingly, we

conclude that the juvenile court properly exercised its jurisdiction to consider the petition

for grandparent visitation in this case because it was a matter involving a child born out of

wedlock.

B. Grandparent Visitation

We now review whether the juvenile court correctly applied the legal standards as

required by Tennessee Code Annotated section 36-6-306. At the outset, we discuss the

conflicting rights involved. A dispute between a child’s parent(s) and grandparent(s) over

visitation presents “a conflict between the parent’s constitutional right to make decisions

about the care and custody of the child and the grandparent’s right to visitation under

Tennessee Code Annotated section 36-6-306.” Coleman, 551 S.W.3d at 697; see

Smallwood, 205 S.W.3d at 362-63. “The right of a parent to raise a child is a fundamental

liberty interest protected by the Fourteenth Amendment to the United States Constitution

and article I, section 8 of the Tennessee Constitution.” Id. at 697-98 (citing Hawk v. Hawk,

855 S.W.2d 573, 578-79 (Tenn. 1993) (citations omitted)). Parents possess “rights to the

care and custody of their children without undue government interference,” which “is

‘among the oldest of the judicially recognized liberty interests protected by the due process

clauses of the federal and state constitutions.’” Id. at 698 (quoting Lovlace, 418 S.W.3d at

30 (citation omitted)); see also State ex rel. Bethell v. Kilvington, 45 S.W. 433, 435 (Tenn.

1898). Parents also have “a privacy interest that protects them from unwarranted state

intervention in parental decision-making and prohibits the court from imposing its

subjective notion of what is in the ‘best interests of the child.’” Id. (quoting Hawk, 855

S.W.2d at 579-80).

However, “the state may interfere with these rights when there is a compelling state

interest.” Id. (citing Smallwood, 205 S.W.3d at 362-63). The Tennessee Supreme Court

has explained that “[t]he state has a role of parens patriae and a duty to protect minors,

and the state may intervene in parental decision-making when necessary to prevent

substantial harm to the child.” Id. (citing In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct.

App. 1983) (citation omitted)); see also Hawk, 855 S.W.2d at 581 (holding that “neither

the legislature nor a court may properly intervene in parenting decisions absent significant

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harm to the child from those decisions”). Parents are protected from unwarranted state

interference in the parenting process by this substantial harm requirement. Id. (citing

Hawk, 855 S.W.2d at 579-80).

i. Opposition

Parents contend that Grandparents did not carry their burden to demonstrate that

visitation was opposed or severely reduced.6 They ask this Court to find that the evidence

preponderates against a finding that visitation was opposed, which would render the

Grandparent Visitation Statute inapplicable. Again, the Grandparent Visitation Statute

provides in pertinent part: