Session Date January 23, 2015
Appeal from the Juvenile Court for Rutherford County No. 6906C Donna Scott Davenport, Judge
Bert W. McCarter and Aaron J. Conklin, Murfreesboro, Tennessee, for the appellant, Daniel M.
Jennifer Potts, Murfreesboro, Tennessee, for the appellee, Jacqueline W.
Andy D. Bennett, J., delivered the opinion of the court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.
ANDY D. BENNETT, JUDGE
Factual and Procedural Background
On August 13, 2008, Jacqueline W. ("Mother") filed a petition against Daniel M. ("Father") to establish parentage and to make her the primary residential parent of Jordin, a child born in April 2008. The court held a hearing on December 2, 2008, upon Mother's petition for parentage and Father's counter-petition,  and the parties announced that they had reached an agreement. The court declared Father Jordin's biological father and announced the details of the agreement from the bench, which included making Mother the primary residential parent and giving Father parenting time during three weekends a month (total of 155 days a year). Unfortunately, the parties did not lodge proposed orders with the court to memorialize this agreement for over a year.
In an order entered on April 19, 2010, the trial court gave a detailed history of the case and adopted Mother's proposed parenting plan. The court made some corrections to the parenting plan, and awarded Mother a judgment in the amount of $1, 100 for retroactive child support. The court also stated: "Mother is strongly cautioned by this Honorable Court to improve her behavior towards the Father." Incorporating language from its opinion letter, the court stated: "I must frankly state that you [Mother] have gone out of your way to make everything difficult for [Father] regarding his daughter. . . . This Court expects you to correct your behavior and act like a civilized human being when dealing with the father of your child."
Father filed a motion to alter or amend and, in an order dated June 11, 2010, the trial court granted Father's motion based upon evidence not known prior to the March 1, 2010 hearing, of Mother's continuing misbehavior and unwillingness to foster the relationship between Father and the child. The trial court modified the parenting plan to a week-on, week-off shared parenting schedule.
The present appeal arises from Father's filing, on July 13, 2012, of a petition to modify parenting plan and for an ex parte restraining order. Father described the June 11, 2010 order as "referencing multiple occasions on which the Mother willfully withheld the child from the Father during his scheduled parenting time as well as finding the Mother in violation of a previous Court Order admonishing both parents not to harass each other by calling the police absent a real emergency or real child abuse/neglect . . . ." Father asserted he would show that a "significant and material change of circumstances has occurred" and, as a result, the week- on, week-off parenting schedule was no longer in the best interests of the child. At Father's request, the court issued an ex parte order restraining Mother from removing the minor child from Father's custody pending a hearing on July 17, 2012.
At the hearing, the court admonished Mother concerning her legal troubles, including driving on a suspended license, threats made by her boyfriend, and failing to take the orders of the court seriously. Mother was ordered to answer Father's questions concerning her fiancé, including his background and any legal issues, on the ground that this information "impacts the care of the minor child when she is with the Mother." The child was to be returned to Mother for regular parenting time.
The hearing on Father's petition to modify the parenting plan was held over four days in April and July 2013. (The parties agreed to have the magistrate make the final decision.) At the beginning of the proof, on April 15, 2013, the parties stipulated that there had been a material change of circumstances. Thus, the only issue before the court was the best interest of the child.
The parties agreed to call their expert witnesses first. Father called Christine Nusser, a licensed clinical social worker, who began counseling Jordin on April 6, 2012, and had seen her every two weeks since then. Father asked Ms. Nusser to help Jordin deal with "issues of custody and tensions between the two households" and other issues as they came up. According to Ms. Nusser, Jordin "grows very tense anytime anything about her mother comes up in the sessions." Ms. Nusser testified that Mother called her and was upset that Jordin was seeing her for therapy. Ms. Nusser stated that she offered to sit down and talk with Mother, but Mother never made an appointment, so Ms. Nusser never had an opportunity to meet with Mother. When asked about Jordin's interactions with Father, Ms. Nusser stated that, "she adores him." She further stated that Jordin was "very relaxed" and "very affectionate" with Father.
Asked about Jordin's developmental level, Ms. Nusser testified that she had some concerns in that regard. There seemed to be some lag in Jordin's skill development. Ms. Nusser also observed extreme anxiety on some occasions. She further stated that Jordin recognized the conflict between her parents, which caused her anxiety. In addition, Ms. Nusser observed that, at times, Jordin was "very obviously screening what she says . . . ." And there were instances where Ms. Nusser perceived Jordin "as being frightened to say what she has to say." Ms. Nusser testified about one source of anxiety for Jordin: the refusal of Mother to allow Jordin to bring a favorite bear to Father's house. According to Ms. Nusser, the conflict regarding the bear put Jordin in the middle between her parents and is "typical of other situations that have occurred that she's been very upset about." Ms. Nusser further testified that, once Mother learned that Jordin was in counseling, Jordin's demeanor changed and she became more guarded about what she would say.
On cross-examination, Ms. Nusser acknowledged that she had only spoken to Mother once in a phone call. Mother was upset because Ms. Nusser had been counseling Jordin for about four months without Mother's knowledge. Father had not wanted Mother to know about the counseling because he felt that she would undermine the process. Ms. Nusser did not think Father was putting any pressure on Jordin to say particular things in therapy. Ms. Nusser testified that Father tape recorded a portion of one therapy session in which Jordin was asked about where she wanted to live. She had a discussion with Jordin about the fact that a judge was going to make some decisions about how much time she would spend with each parent. It was Ms. Nusser's understanding that Father's wife had mentioned the possibility of some changes to Jordin. Ms. Nusser testified that, since Jordin had started seeing Elysse Beasley, a counselor Mother selected to talk with Jordin, Jordin had become more guarded.
Ms. Beasley, the clinical psychologist called as an expert witness by Mother, began seeing Jordin in August of 2012. She testified that the scope of her treatment was to "evaluate [Jordin] in terms of mood, affect, just to see how she's doing, whether there's anything going on or anything distressing going on [with] her." On voir dire, Ms. Beasley acknowledged that she was not providing counseling for the child. On direct examination, Ms. Beasley was asked why Mother started bringing Jordin to see her. Mr. Beasley stated that Mother was served with papers indicating that Jordin had been in counseling for a number of months with another therapist and "there were some allegations in those papers regarding [Mother's] relationship with Jordin which concerned her and surprised her, and she felt that she needed to bring her in, in essence, for a second . . . opinion as to whether there were problems with her daughter."
Ms. Beasley saw Jordin every other week. She described the child as being friendly, but also observed that Jordin was guarded "in terms of what she will say and what she won't say, what she'll talk about and what she won't talk about." When asked her opinion about why Jordin was guarded, Ms. Beasley stated her belief that Jordin "is getting asked questions by her father. She's getting asked questions by her mother. And there seems to be some lines drawn in terms of, you know, what she says to them." Ms. Beasley continued, "And she tends to be a pleaser. I think she wants to please both of her parents. She loves both of her parents. And - and I think this is her way of trying not to get in the - in the middle."
On cross-examination, Ms. Beasley testified that she performed a mental status examination to evaluate Jordin's mood and affect, and to observe her relationship with her mother. Based upon Ms. Beasley's observations, Jordin's relationship with her mother "appears to be a healthy one." She saw no indications that Mother was coaching Jordin about what she should say. Ms. Beasley had not had a chance to see Father interact with Jordin. She communicated with him by email. Based on her conversations with Father, Ms. Beasley had some concerns that he might be putting pressure on Jordin. She testified as follows:
He has said a couple of things to me that gave me some - some concern. One thing that he had mentioned - and this was in a - the one meeting that we had with him - that he had information regarding something that had been said in a session that Jordin had had with Ms. Nusser, and that Jordin had disclosed something to Ms. Nusser that she had asked Ms. Nusser not to disclose to - to her father. And he told me what this statement was. And I said, Well, how did you learn about that? And he said, Well, Ms. Nusser told me. So one concern that I had was regarding some of the confidentiality in that therapeutic relationship where he was, obviously, getting some information that perhaps he should not have gotten.
And the other thing that he had said was that he had tape-recorded some of - at least one session. You know, I don't know whether there was more than one, but that he had tape-recorded one session. Which, again, gives him access to information that normally would be confidential. And that puts him, whether he's doing it consciously or unconsciously, in a position where - where he's got information that, obviously, could be manipulated.
Ms. Beasley testified that she saw, in Ms. Nusser's notes, that Jordin said she was aware there was a court date to decide where she was going to live. Jordin had said this to Ms. Beasley as well. Ms. Beasley did not think it was appropriate for a child Jordin's age (four years old) to be involved in, or even be aware of, that kind of litigation because it puts them in the middle. She testified that she had noticed that Jordin withdrew when her parents took her to the doctor's office and there was some difficulty, which showed her tendency to detach from conflict. When Ms. Beasley asked Jordin what her stepmother gave her for Christmas, Jordin said she did not know. Ms. Beasley interpreted the latter as showing a discomfort with discussing what happened in Father's household. Ms. Nusser sent Ms. Beasley a letter in which she said she was becoming increasingly alarmed about Jordin, but she never provided Ms. Beasley with any further details about what was causing this alarm (as requested by Ms. Beasley). Ms. Beasley testified that she never saw any "major red flags" with respect to Jordin's condition. Based upon her evaluations of Jordin, Ms. Beasley was "not seeing those things that Ms. Nusser has seen."
When the parties returned to court on July 15, 2013, Father recalled Ms. Nusser as a witness. She testified that she had continued to give therapy to Jordin since the time of the previous hearing. Ms. Nusser was concerned about an incident on Mother's Day when the parents were exchanging the child in the parking lot of the police station and Jordin became frightened and upset when Mother grabbed her and refused to give her to the stepmother. The police came out of the building and responded to the situation.
Ms. Nusser noticed that Jordin was not excited about her baby brother like she used to be; Jordin said that she was "not allowed to hold him, that she's not allowed to do things for him. And she's not - she doesn't understand that. . . . She presents the impression that she feels separated in the family, that it's her mother and Steven [Mother's fiancé] and the baby, and then she's separate from that." Jordin reported that Mother told her that her mother (the child's grandmother) was "not a nice person, that she's been mean to" Mother. This was confusing to Jordin because she liked seeing her grandparents.
According to Ms. Nusser, Jordin talked about court a lot:
She will say things like, I want it to be 50-50. And then she'll think about it, and she says, No, I'm confused, and then she'll say something else. She appears to be coached on what she should say to me. She's told me that whatever happens in Ms. Beasley's office she's not allowed to talk to me about anymore, it's a secret.
Ms. Nusser opined that Jordin needed a "safe place and she needs to be able to talk about her feelings openly and honestly. . . . And to have to remember what she's supposed to say to who, or to feel pressure about this, is very difficult for a young child." Ms. Nusser opined that Jordin felt safe and included in Father's home.
On cross-examination, Ms. Nusser acknowledged that she thought both parties, not just Mother, had been talking to Jordin about court. Ms. Nusser also admitted that she had been conducting sessions at Father's home for a little over a month.
Mother called Chastity Hofmann as a character witness. She had known Mother for almost nine years and testified that Mother was a "terrific mother" and that she herself trusted her children with Mother.
Shirley Masteller, Mother's landlord, was the next witness for Mother. She testified that Mother kept a clean home and that the yard was always mowed. Ms. Masteller felt that Mother's was probably the best cared for of all seventeen of the homes that she managed. She described Jordin as "very interactive"; she seemed to be "a very happy child." Ms. Masteller had many opportunities to observe Mother and Jordin together and stated that they seemed to get along well and were "very loving."
Father then began to call his non-expert witnesses, the first of whom was Steven Trout, Mother's fiancé. Mr. Trout admitted that he had been arrested for driving under the influence in April 2012, but stated that was his only arrest. He was questioned about an arrest for domestic assault in January 2012, and responded that that offense had been expunged. Counsel stated that he had still been arrested and questioned Mr. Trout about previous testimony during which he allegedly denied this arrest. Mr. Trout testified about the details of the domestic assault and stated that he never pushed Mother. He stated that Mother was now a stay-at-home mom.
On cross-examination, Mr. Trout described Mother as having a "wonderful, loving relationship" with Jordin. Mother preferred to have Jordin with her and would only rarely use a babysitter. They would go on outings to the park or to Chuck E. Cheese or to other places. Mr. Trout testified that he had a "great relationship with Jordin." She would cuddle up with him on the couch. She always wanted to play on their indoor putting green: "she wants to put her hat on and her golf shoes, and she's got her own golf clubs. . . . She's always hugging me, and telling me she loves me . . . ." When asked how he would describe Father's relationship with Mother, Mr. Trout stated that Father was "kind of controlling." In Mr. Trout's opinion, Father did not really help facilitate co-parenting. According to Mr. Trout, Jordin often came back sick from Father's house.
Suzanne Ogletree, Mother's mother (Jordin's maternal grandmother) was the next to testify. Ms. Ogletree testified that Mother and Mr. Trout fought "continually." She had helped them out financially many times. When Ms. Ogletree refused to prevent Mother's car from being repossessed, Mother stopped letting her see Jordin, whereas she had previously been seeing the child on a daily basis. This occurred in February or March 2013. After consulting with an attorney, Ms. Ogletree contacted Father, who invited her to his home to talk about seeing Jordin. Father now allowed Jordin to spend the night with Ms. Ogletree every Friday they had her. Ms. Ogletree found that a negative impression she had previously formed about Father and stepmother was not accurate. Jordin loved her stepsister.
Ms. Ogletree described an incident that occurred at Chuck E. Cheese when Mother became enraged and yelled at her because Ms. Ogletree allowed Jordin to interact with Kent, Mother's brother, something Mother considered inappropriate due to things he had done in the past. Ms. Ogletree stated that Mother had not always been a truthful person. She further testified that Mother did not facilitate a relationship between Jordin and Father and his wife. On one occasion, when referring to Father's wife, Mother stated, "That f---ing b---h is not her mother." This was allegedly said in Jordin's presence. Ms. Ogletree stated that Jordin was admonished if she mentioned Father or stepmother in Mother's presence.
On cross-examination, Ms. Ogletree admitted that, in March of 2013, she had gone to Mother's attorney and expressed concerns about Father and his wife. Ms. Ogletree acknowledged that Mother called her several times but she had not returned the phone calls. As to the incident at Chuck E. Cheese, Ms. Ogletree admitted that Mother had asked her not to allow Jordin to be around Kent and that she allowed Jordin to be around Kent anyway.
Father next called Mother to the stand. Asked how she was facilitating a relationship with ...