Donna Faye Glover England v. Richard Piercey

• Court: Court of Appeals of Tennessee
• Decided: November 15, 1995
• Docket: 01A01-9507-CH-00320
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

DONNA FAYE GLOVER ENGLAND, ) From the Chancery Court of Trousdale ) County at Hartsville, Tennessee Plaintiff/Appellant, ) ) The Hon. C. K. Smith, Chancellor vs. ) ) Trousdale Chancery No. 6049 RICHARD PIERCEY, ) Appeal No. 01A01-9507-CH-00320 ) Defendant/Appellee. ) AFFIRMED ) ) Richard M. Brooks ) Carthage, Tennessee FILED ) ) Attorney for Appellant

Nov. 15, 1995 ) Betty Lou Taylor ) Donoho, Taylor & Taylor Cecil Crowson, Jr. ) Hartsville, Tennessee Appellate Court Clerk ) Attorney for Appellee ) ) B. Keith Williams ) Lebanon, Tennessee ) Attorney for Appellee

MEMORANDUM OPINION1

HIGHERS, J.

This is a grandparent's visitation case. Plaintiff, Donna Faye Glover England, is the

maternal grandmother of Skylar Piercey, age four. Skylar's natural mother died in

December of 1993. Skylar's natural father, Richard Piercey, now refuses to allow England

to see Skylar. England filed a petition for grandparent visitation. The trial court dismissed

the case based upon the Tennessee Supreme Court decision of Hawk v. Hawk, 855 S.W.

2d 573 (Tenn. 1993), reasoning that Hawk allows Piercey as the natural father, to deny

England the right to see Skylar in the absence of a showing of substantial harm to the

child. We affirm the decision of the trial court.

In Hawk, 855 S.W. 2d 573, the Tennessee Supreme Court held that parents have

1 Rule 10 (C ourt o f Appea ls). Mem orandum Opinion. -- (b) The Co urt, with th e concurrence of all judges participating in the case, m ay affirm, reverse or m odify the actions of the trial court by mem orandum opinion when a formal opinion would have no precedential value. W hen a case is decided by memorandum opinion it shall be designated "MEM ORAN DUM OPINION," shall not be published, and shall not be cited or relied upon for any reason in a subsequent unrelated case. a constitutional right of privacy in parenting decisions that may not be subjected to state

interference absent a showing of substantial harm to the welfare of the child. Id. at 577.

Pursuant to Hawk, therefore, a natural parent may deny a grandparent the right to visit the

children unless the grandparent can establish that there exists a danger of substantial

harm to the child. Id.

England contends that her case is distinguishable from Hawk because Hawk

involved an intact, nuclear family, while in the present situation, no intact, nuclear family

exists. In light of recent case law developments on the subject, England's contention is

without merit.

This Court was presented with virtually identical facts to the case at bar in Floyd v.

McNeely, No. 02A01-9408-CH-00187, 1995 WL 390954 (Tenn. App. July 5, 1995). In

Floyd, the natural father of the children died and the paternal grandmother sought

visitation. We expressly rejected the grandmother's contention that her case was

distinguishable from Hawk because no intact, nuclear family existed. Id. at *3. We stated:

"[W]e are convinced that [the mother's] right to parent her children as she sees fit, including a decision regarding a relationship between them and their grandmother, is no less greater than the right afforded to the married natural parents under Hawk...[W]e do not view the breakup of a nuclear family, in and of itself, to constitute a substantial harm to a child sufficient to justify state interference with a fit parent's decision to preclude a relationship between that child and his/her grandparents."

Id. at 4.

Further support for our rejection of England's argument derives from the cases of

Nale v. Robertson, 871 S.W. 2d 674 (Tenn. 1994), and Simmons v. Simmons, 900 S.W.

2d 682 (Tenn. 1995). In Nale, the Tennessee Supreme Court expressly stated, "The

[plaintiff's] position that this Court in Hawk limited the protection of parental rights to 'an

intact, nuclear family with fit parents' is untenable." Id. at 680. Similarly, in Simmons, the

Court held that the natural mother and adoptive father possessed the same right as a

nuclear intact family to preclude a relationship between the paternal grandparents and the

child. Id. at 9.

2 The record before us contains no evidence that there is a danger of substantial

harm to Skylar, nor has England alleged any such harm. Consequently, there is no

compelling state interest sufficient to justify state interference upon the right of Piercey, the

natural father, to preclude a relationship between Skylar and England. It is indeed

unfortunate that Piercey has elected to sever all relations between England and Skylar.

This Court, however, is governed by law, rather than sentiment, and we are bound to follow

the mandates of our Constitution and Supreme Court.

The judgment of the trial court is affirmed. Costs on appeal are taxed to appellant.

CONCUR:

FARMER, J.

WILLIAMS, SR. J.