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02/26/88 STATE TENNESSEE v. JOHN S. WOLF

February 26, 1988

STATE OF TENNESSEE, EX REL. VICTOR S. JOHNSON, III DISTRICT ATTORNEY GENERAL, PETITIONER/APPELLEE,
v.
JOHN S. WOLF, JR., DEFENDANT/APPELLANT; IN THE MATTER OF ELIZABETH POLK WOLF, A CHILD UNDER THE AGE OF EIGHTEEN YEARS NO. 06-52-82



Davidson Circuit Appeal No. 88-28-II. APPEAL FROM THE FOURTH CIRCUIT COURT FOR DAVIDSON COUNTY, AT NASHVILLE, TENNESSEE, THE HONORABLE MURIEL ROBINSON, JUDGE.

Koch, Judge; Todd, P.j., Cantrell, J., concur.

The opinion of the court was delivered by: Koch

WILLIAM C. KOCH, JR., JUDGE

This interlocutory appeal involves the power of a circuit court to exercise control over the manner in which a juvenile court conducts a dependent and neglect hearing. We granted the appeal after the Fourth Circuit Court for Davidson County, at the request of the District Attorney General, issued an order preventing the Juvenile Court of Nashville and Davidson County from receiving the testimony of two children who were the subject of a hearing that was in its seventh week when it was halted. We have concluded that the Circuit Court exceeded its authority by countermanding the orders of the Juvenile Court and that the District Attorney General's petitions did not state a claim justifying the extraordinary relief awarded by the Circuit Court. *fn1

I.

Helen Elizabeth Polk Wolf and John Stewart Wolf, Jr. were married in 1970 while John Wolf was in medical school. They moved to Nashville in 1976 where Dr. Wolf established a practice in internal medicine. Their son, John Clopton Wolf, was born in 1980. Their second child, Elizabeth Polk Wolf, was born in 1982.

The parties' relationship had seriously deteriorated prior to the birth of their second child. Mrs. Wolf told her husband that he was not the child's father in order to induce him to agree to an abortion. Dr. Wolf did not agree and began to spend a great deal of time away from home in the company of young male friends. He also began to drink heavily and to abuse drugs.

In 1984 Mrs. Wolf instructed her lawyer to prepare a property settlement agreement giving her $400,000 in alimony, the equity in the parties' home, and fifty percent of Dr. Wolf's net income as child support. Dr. Wolf refused to sign the agreement, and Mrs. Wolf threatened to "destroy" him. She hired a private detective to help her blackmail Dr. Wolf into signing the agreement, but her plot ended unsuccessfully when the detective was arrested for impersonating a federal officer.

Mrs. Wolf filed for divorce in January, 1985. Dr. Wolf immediately counterclaimed for divorce. The Probate Court of Davidson County awarded Dr. Wolf a divorce on the grounds of cruel and inhuman treatment in January, 1986 and gave the parties joint custody of their two children with Mrs. Wolf retaining primary physical custody.

At the time the divorce was granted, the parties' son was scheduled to enter the hospital for psychiatric treatment of a severe emotional disorder. Accordingly, while their dispute concerning the division of the marital property remained unresolved, the parties agreed that Mrs. Wolf should have custody of their son and that he would be placed under the care of a psychiatrist. Dr. Wolf also agreed that his visitation with the child would be limited and supervised.

Mrs. Wolf appealed from the Probate Court's final order in the divorce proceeding. She took issue with the Probate Court's decision to grant Dr. Wolf the divorce. She also challenged the alimony and child support awards and the manner in which the marital property was divided. This Court affirmed the decision to grant Dr. Wolf the divorce but modified the alimony and child support awards as well as the manner in which the Probate Court divided the marital property. This Court also remanded the case to the Probate Court for further consideration of the custody of the parties' daughter. Wolf v. Wolf, No. 86-322-II (Tenn. Ct. App. filed May 20, 1987). *fn2

In July, 1987, before the Probate Court had a chance to consider the issue of Elizabeth's custody, the Department of Human Services ("Department") filed petitions in the Juvenile Court of Nashville and Davidson County seeking to have Elizabeth and her brother declared dependent and neglected children. *fn3 The Department also requested that Elizabeth be placed in protective custody immediately because it believed that Dr. Wolf was sexually abusing his daughter while he was exercising his visitation with her. Elizabeth was placed in the custody of the Department. Dr. Wolf alleges he has not been permitted to see his daughter since the Department's petition was filed.

The allegations giving rise to the proceeding in Juvenile Court also resulted in Dr. Wolf's being charged with committing a series of aggravated sexual batteries and aggravated rapes on both his children. Dr. Wolf denied that he had sexually abused his children. The trial of these charges was scheduled to begin in the Criminal Court for Davidson County on February 1, 1988. It was the parties' procedural posturing on the eve of the criminal trial that gave rise to the present appeal.

The Department decided to proceed in the Juvenile Court with its petitions before Dr. Wolf's criminal trial began. At some point in the proceeding, and for reasons not apparent in the record, the District Attorney General for the Twentieth Judicial District who was prosecuting Dr. Wolf in criminal court, requested to intervene in the Juvenile Court proceeding as a party. The Juvenile Court permitted the District Attorney General to do so.

The proceeding in Juvenile Court on the Department's petitions began on December 2, 1987. The hearing was substantially complete after seven weeks of testimony when, on January 26, 1988, Dr. Wolf's attorneys requested permission to call the Wolf children as their final witnesses. The Department and the District Attorney General opposed this motion ostensibly because it was not in the children's best interests to be exposed to the rigors of testifying in Juvenile Court when they might also be required to testify against their father in the pending criminal proceeding. *fn4

The Juvenile Court decided that the children would be examined in chambers on January 27, 1988. The Juvenile Court informed the parties that it intended to interview the children to determine whether they were competent witnesses and to answer their questions about the proceedings. The Juvenile Court also admonished all the parties, including the District Attorney General, to refrain from contentious behavior in the children's presence and to refrain from discussing the substance of the children's testimony with them prior to his meeting with the children in chambers.

On the morning of January 27, 1988, the District Attorney General requested the Juvenile Court to delay examining the children until after the criminal trial was completed. The Juvenile Court denied this request because it planned to conclude the hearing on the Department's petitions that day. Thereupon, the District Attorney General filed a sworn petition in the Fourth Circuit Court for Davidson County requesting the Circuit Court to prevent the Juvenile Court from hearing the children because requiring them to testify would be "detrimental to the well being and mental health of the children and could interrupt their ability to testify in Criminal Court." The Circuit Court entered an order on January 27, 1988 staying the Juvenile Court's decision to hear the children in chambers. The Circuit Court also gave Dr. Wolf permission to seek an interlocutory appeal from its stay order. *fn5

Dr. Wolf also applied to this Court for an interlocutory appeal seeking an order immediately vacating the Circuit Court's order. On January 28, 1988, this Court declined to vacate the Circuit Court's order but set the matter for hearing on February 8, 1988.

The Juvenile Court issued a second order on January 27, 1988 after the Circuit Court had stopped the examination of the children. In order to protect the integrity of the children's testimony, the Juvenile Court prohibited the parties from "interviewing, questioning or discussing, in any manner, the subject of whether petitioner or any other person committed any act of sexual or other abuse, with John Clopton Wolf and Elizabeth Polk Wolf, until such time as this Court had heard their testimony or vacates this order in view of a pending criminal case against Dr. John Wolf."

The District Attorney General filed a second petition on January 29, 1988, requesting the Circuit Court to vacate the Juvenile Court's order prohibiting him from discussing the alleged acts of sexual abuse with the children. The Circuit Court again stayed the Juvenile Court's order and expressly permitted the District Attorney General and his agents to discuss the allegations of Dr. Wolf's alleged sexual abuse with his children and to otherwise prepare the State's case for trial.

Dr. Wolf filed a second application for an interlocutory appeal on January 29, 1988. Two members of this panel heard the parties on the evening of January 29, 1988. The Court again declined to stay the Circuit Court's order but directed that the second application be consolidated with the first and that argument be scheduled for February 8, 1988.

II.

The Circuit Court's ...


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