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In re Emmalee O.

Court of Appeals of Tennessee, Knoxville

January 27, 2015

IN RE: EMMALEE O., ET AL

Session: November 25, 2014.

Petition for certiorari filed at, 08/06/2015

Page 312

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded. Appeal from the Circuit Court for Knox County. No. 126793. Jon K. Blackwood, Senior Judge.

Alan O., appellants, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, and, Mary Byrd Ferrara, Assistant Attorney General, for the appellee, the Tennessee Department of Children's Services.

Patti Jane Lay, Knoxville, Tennessee, for the appellee, Trisha O.

D. MICHAEL SWINEY, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

OPINION

Page 313

D. MICHAEL SWINEY, JUDGE

This appeal concerns an allegation of child sexual abuse against a parent. The Tennessee Department of Children's Services (" DCS" ) filed a petition in the Juvenile Court for Knox County (" the Juvenile Court" ) against Alan O. (" Father" ) alleging that he had sexually abused his then three year old daughter Emmalee O. (" the Child" ). The Child had disclosed that Father had " poked" and " rubbed" her vagina. For his part, Father asserted that he touched the Child's vaginal area only as part of his normal parenting duties, and that he never touched her in an inappropriate manner. After a trial, the Juvenile Court found that the Child was a victim of severe child abuse by Father. The case was appealed to the Circuit Court for Knox County (" the Trial Court" ). After a new trial, the Trial Court found that the Child was a victim of severe child abuse by Father. Father appeals to this Court. We hold, inter alia, that the evidence rises to the level of clear and convincing sufficient to establish severe child abuse. We affirm the judgment of the Trial Court in its entirety.

OPINION

Background

Father married Trisha O. (" Mother" ) in August 2006. This was Mother's second marriage. Mother had two children from her prior marriage, Ashley and Conner. This was the first marriage for Father, then age fifty. Father and Mother met through an online Christian singles dating service. Father and Mother's marriage was to be " scriptural" in nature, guided by their interpretation of Christian requirements for marriage.

Father and Mother lived in Mother's house from her previous marriage. Mother operated an internet business called Mystery Shoppers, and Father worked as a software engineer at Cisco. Father later left Cisco and became a stay-at-home dad. Father and Mother had two daughters together. The first daughter, the Child, was born in September 2007, and is the child at the heart of the controversy. The parties' second daughter, Abigail, was born in August 2009.

In 2009, problems began to develop in the marriage. Father moved out of the marital residence. Father continued to visit the marital home as the parties attempted to reconcile for a period. While this was happening, Mother obtained legal services to file for a separation from Father. Father did not know that this had

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occurred until many months later. Father and Mother saw several counselors in a bid to fix their collapsing marriage. Nothing, however, worked. In the meantime, the parties had adopted a 50/50 visitation schedule for their children. Following further conflict in January 2011, Mother told Father he could no longer spend the night at her home.

In March 2011, Mother took the Child to see her pediatrician (" Dr. Meyer" ). The Child told Mother that her father had rubbed her vaginal area. Dr. Meyer examined the Child and noticed that the Child's vagina was irritated. Dr. Meyer reported the matter to DCS. This initial report yielded no further action. Mother began talks with licensed clinical social worker Nan Buturff (" Buturff" ). Mother continued to monitor the Child.

In late April 2011, the Child stayed with Father for another visitation. Afterwards, the Child told Mother that she wanted to go see Dr. Meyer, and that Father had " poked" her in her vaginal area. Mother took the Child to Dr. Meyer for another examination, which revealed irritation in the vaginal area. Mother then took the Child to see Buturff. Buturff asked the Child if anyone had touched her vagina. The Child stated that Father had. Buturff subsequently reported the matter to DCS, and these legal proceedings followed.

The Child underwent a forensic interview on April 29, 2011. Nicole Bajoie, a licensed forensic interviewer, conducted the Child's interview. The Child stated that Father had touched her vagina, or, " putty," as she called it. Mother, through law enforcement, made a recorded phone call to Father to inform him. Father angrily denied any inappropriate touching of the Child and claimed Mother only made the allegations to garner an advantage in their divorce proceedings. Law enforcement visited Father and interviewed him as well. In that interview, Father denied any inappropriate touching of the Child, but noted that about six weeks prior he had noticed some vaginal irritation on the Child.

In May 2011, DCS filed its petition for restraining order against Father in the Juvenile Court, alleging that Father had abused the Child and requesting that a guardian ad litem be appointed for the Child. In 2012, following a hearing, a Magistrate of the Juvenile Court found that the Child and Abigail were dependent and neglected and that the Child was the victim of severe child abuse by Father. Father filed a petition for rehearing with the Juvenile Court, which was denied.

The matter then went to the Trial Court for trial de novo. The new trial occurred over several days in December 2013. The Trial Court, whose detailed factual findings are quoted below, heard testimony regarding the disclosures of the Child. In addition to the testimony regarding these disclosures, as reflected below in the Trial Court's detailed order, we also quote from Father's testimony as to his explanation for the events in controversy. Father, when questioned about the timing of the alleged incidents and confronted with his deposition responses, testified:

Q. Okay. I think I cut you off at, " You stay right here and let daddy go get a washcloth and I'll wipe it out." No, no, no. " I took my finger like this to open her vagina." Pick up with line 8, " and I took."
A. " And I took that washcloth and I put it on my thumb and I went like this."
Q. I don't remember what you did, but what did you do with your thumb and washcloth at that time?
A. If I could recall, when we were doing this, it was I had her vagina

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spread and I had the washcloth on my thumb and I wiped up, because she had the discharge inside the crease on the left side of her vagina. So I wiped up to wipe that out.
***
Q. [Mr. O], would you agree with me that you did not provide Detective Delgado and Investigator Bishop that story of opening up Emmalee's vagina when they talked to you on April 29, 2011?
A. No, I didn't go into that detail. I did tell them that I had checked her for a yeast infection and that I had looked for the discharge, but it was not until I got some of the records that indicated, for example, like that intake report which indicated in detail, like, for example, that Emmalee was on the sofa and she said daddy gave her a kiss and it hurt that I was able to start realizing that earlier - - because nobody told me there was a complaint in March.
I had no idea that anybody said there was any allegations back on March 11th or the first part of March, so I didn't look back that far to try and figure out whether or not that might be what Emmalee was talking about. It was only after I got Ms. Buturff's records and the DCS records that I could see there was actually a complaint back in the first part of March, that I could say, okay, that looks like maybe what she's talking about, because up until that point, I had no reason to think that that had anything to do with it, because [Mother] told me that that alleged touching happened that last visit [in April] and that she took her to the doctor right then. It was only after I got more information and realized there was a complaint in the first part of March that any of this made any sense.
Q. So it took your realizing that there was a complaint back in March to recall this kind of story with this kind of detail? When you were confronted on April 29 of 2011 about your child saying she had been poked and rubbed by you, it took learning about a complaint back in March to recall this story?
A. We were not discussing what happened in March in April when they interviewed me. We were looking at the last visit. This would have been totally irrelevant, because there's no way that Emmalee would have been complaining, I didn't think, about something that happened seven weeks ago or in the first part of March, when what was told to me was, by [Mother], was whatever this allegation was happened like two days ago or three days ago when they were with me for the last time.
Now, if they had said there was a complaint also in the first part of March, can you think of anything then, then I probably would have been able to say, well, look, perhaps it was that, because the best I can determine, I checked her on March 6th, which is four days before [Mother] said that Emmalee mentioned comments to her. Like I said, the focus was on the last visit, and what happened seven weeks ago or seven months ago really didn't explain what Emmalee was supposedly saying during the last visit.
Q. Okay. Now, this alleged yeast infection that you opened up her vagina to wipe out the discharge in March, you didn't take Emmalee to see the doctor to help her with that alleged yeast infection, correct?

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A. I did not take Emmalee to the doctor. I thought the correct treatment for a yeast infection was to give her yogurt, because that's what I had discussed with my wife on previous occasions. I had given the girls yogurt so they wouldn't get yeast infections. Emmalee told her mother that her daddy said she had a yeast infection at this same time. So, no, I didn't take her to the doctor because I didn't realize that's what I should have done, but in retrospect, I should have, because she complained that it was itching.

In January 2014, the Trial Court entered its order finding the Child to be the victim of severe child abuse. Given the fact-intensive nature of this case, the significance of the Trial Court's factual findings to our review, and, in the cause of maximum completeness given the grave subject matter at issue, we will reproduce a large portion of the Trial Court's detailed order:

While the parties were separated, but during the time that the father was visiting and spending the night at the wife's house, the mother observed an incident wherein Emmalee touched herself in a sexual manner. Emmalee placed herself close to her father on the floor, spread her legs and said " Scratch my putty, daddy." Neither party thought this incident to be of any import. After the final separation in January, the mother noticed that Emmalee would touch herself in her private parts. Emmalee would either pull her pants down and start touching or would insert her hand into her panties. Mother inquired of Emmalee if anyone touched her. Emmalee responded by saying " Daddy does." Mother asked, " What does Daddy do?" In response, Emmalee stuck her hand on her vagina and said, " rub, rub" while her hand went up and down on her vagina. While concerned about this disclosure, the mother took no action fearing that she might have ...

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