Session November 18, 2014
Appeal from the Chancery Court for Williamson County No. 35642 Robbie T. Beal, Judge
Robert E. Lee Davies and William P. Holloway, Franklin, Tennessee, for the appellant, Alison Fein (Young) Dahl.
Donald Capparella and Elizabeth Sitgreaves, Nashville, Tennessee, for the appellee, Shawn Patrick Young.
Andy D. Bennett, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins, J., joined.
ANDY D. BENNETT, JUDGE.
Alison Fein (Young) Dahl ("Mother") and Shawn Patrick Young ("Father") are the biological parents of the child at issue in this case ("LY" or "the Child"). Mother and Father were divorced in 2010, when the Child was about 20 months old. According to the permanent parenting plan entered at the time of divorce, Mother was named the primary residential parent and was awarded 223 days per year with the Child. Father was awarded 142 days.
Mother remarried in 2012. Her husband is a lieutenant commander in the United States Navy, and he received orders to report to Norfolk in the fall of 2013 to work as a pediatric neurologist in a naval hospital. Mother notified Father in January 2013 of her desire to relocate with the Child to Virginia in the fall of that year. Father opposed Mother's relocation and filed a petition in opposition on January 30. In his opposition, Father asserted, inter alia, that the relocation would pose a threat of specific and serious harm to the Child which outweighed the threat of harm to the Child by a change of custody. Father asked the court to deny Mother's request to relocate with the Child and to designate him as the primary residential parent.
The main reason Father opposed Mother's relocation was because of an incident of sexual abuse by the Child's step-brother, ZD, when the Child was four and ZD was ten. The incident occurred in July 2012, on a Saturday night in Mother's home, when Mother and her husband were in another room. The Child did not disclose the abuse to Mother until she was putting him to bed that night. Mother and her husband returned ZD to his mother's house the following day. On Monday, they contacted a therapist to begin counseling the Child about the abuse that had been perpetrated on him by his stepbrother. They also contacted the Department of Children's Services ("DCS") and agreed to a permanency plan designed to ensure the Child's safety.
Both LY's therapist and ZD's therapist recognized that reunification of the stepbrothers was a desirable outcome due to the permanency of the relationship between Mother and ZD's father. Father objected to any contact between the Child and ZD because he was fearful of further abuse. LY's therapist testified (by deposition) that reunification was appropriate so long as there was adequate supervision of the two boys when they were together and a safety plan was followed. LY's therapist explained that the safety plan should include:
making sure there are alarms, making sure there's a video monitor, making sure there's adult supervision the entire time, things related to when and how kids go to the bathroom, use the restrooms, change their clothes, all of those body safety kinds of recommendations.
Mother testified that she and her husband have fully implemented the safety plan LY's therapist recommended and that there have been no further incidents of abuse. Father complains, however, that Mother did not follow all of the recommendations LY's therapist made regarding the supervision of LY and ZD at Mother and her husband's wedding celebration a few months later.
LY's therapist testified, however, that Mother is a good, caring parent and that she took appropriate steps to protect LY once she learned of the abuse:
I will say, I want to be clear, because I see so many of these cases, that there are situations in which a parent is non-protective at the point of disclosure, and this is not a case like that. This is a case where mom immediately listened to the child, immediately took the proper steps to separate the children, until there was feedback from therapists, and so forth. So [she was] way ahead of the game, not to be painted as a non-protective parent. . . . I just want that on the record because - - because so many things were done right, especially in the beginning.
ZD's mother is ZD's primary residential parent. Prior to Mother's husband's relocation to Virginia, ZD and the Child spent supervised time together at Mother's house in accordance with the safety plan LY's therapist recommended. No evidence was introduced suggesting that ZD has engaged in any conduct towards LY that would be a cause for concern since the initial (and only) incident in July 2012.
Mother testified at trial that if she were permitted to move to Virginia with LY, LY would spend less time with ZD than he does while living in Tennessee. Mother explained:
[I]f the Court were to adopt my plan, based on LY's school schedule in Norfolk, and ZD's school schedule here in Williamson County, there's very little overlap during the year, probably two or three days during the actual school year, and in the summer months, they would also be swapping. So, essentially, they would have opposite schedules. They would see each other less than would if LY were here and . . . LY was going to school here in Williamson County. So, I would say less than 14 days out of the entire calendar year that ZD and LY would actually be together in Norfolk.
II. Trial Court's Ruling
The trial court announced its ruling from the bench following the trial, before it issued a written order. The court addressed several issues in its oral ruling. First, the court approved Mother's request to relocate with the Child. The court explained:
[T]he mother, who is the primary residential parent [who] spends the majority amount of time with the child, has a legitimate purpose . . . in at least wanting to move. She wants to get on with her life. . . . [S]he has the right to expect that if circumstances exist that cause him to have to move that she should be able to move with her new husband. That's a very legitimate interest and that interest is recognized by the statutes of the state.
The trial court then addressed Father's contention that the relocation would pose a threat of specific and serious harm to the Child that outweighs the threat of harm from a change of custody. Opining that the sexual abuse ZD perpetrated on LY met the definition of "specific threat of harm, " the court stated:
The question then is that harm enough that would cause this Court to believe that the move should not take place. Is it the Court's only option basically to prevent the move, possibly change custody if the mother still wants to move, possibly change custody to protect [LY]. We have some very credible testimony from Dr. Kenner in this case who stated that there's a threat that [ZD] -- high threat that [ZD] would reoffend. He asked the Court to do a psychosexual [test], that this psychosexual would be a great help to the Court to determine if [ZD] is someone that would reoffend and poses this type of threat.
Dr. Kenner has testified in this Court before. I give Dr. Kenner a lot of weight in his statements, a lot of weight. . . . But because [ZD] spends so little time or will spend so little time around [LY], that threat of reoffending is lessened significantly.
The other thing is, I mean, the mother comes in here with credibility. There is no reason for me to believe that the mother is not capable and ready to protect her child [LY]. There were some statements made that she perhaps made wrong decisions with regard to the amount of ...