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In re Emily M.

Court of Appeals of Tennessee, Nashville

November 30, 2016

IN RE EMILY M.[1]

          Session August 18, 2016

         Appeal from the Juvenile Court for Rutherford County No. 4858C Donna Davenport, Judge

         This appeal arises from the change in the designation of the primary residential parent and the modification of a residential parenting schedule. Mother appeals, contending that certain factual findings made by the court are unsupported by the record and that the court erred in restricting her parenting time. The court's findings are supported by the record and did not abuse its discretion in reducing Mother's parenting time; accordingly, we affirm the judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

          Guy R. Dotson, Jr. and John C. Taylor, Murfreesboro, Tennessee, for the appellant, Melissa I. (C).

          Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellee, Dalivus M.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural History

         This appeal involves the modification of a parenting plan. Emily M. was born to Dalivus M. ("Father") and Melissa C. ("Mother") in February 2004. In November 2009, an agreed order was entered that contained a parenting plan that named Mother as primary residential parent and set equal parenting time for the parties.[2]

         On February 28, 2014, Father filed a petition for a temporary restraining order and to modify the parenting plan to name him as primary residential parent, alleging that Mother engaged in "erratic, irrational, and dangerous" behavior and had been "committed to the V[eterans] A[ffairs] hospital . . . for psychological and drug abuse reasons." Father attached several police reports relating to Mother's behavior on December 26, 2013, January 18, 2014, and February 11, 2014 to his petition. The court granted the order on the same day, restraining Mother from "coming about the minor child . . . for any purpose or reason, pending further orders of the court." By agreed order entered April 9, 2014, Mother agreed to submit to a drug test every Friday, and if she passed the drug test, she would have supervised visitation every Saturday from 3:00 to 6:00 p.m. Following a hearing on April 23, 2014, an order was entered on July 1 ("the July 1 order"), permitting Mother to visit Emily at school, have supervised parenting time on Saturdays, and requiring Mother to undergo drug tests monthly instead of weekly.

         A hearing on the petition to modify was held before a magistrate on October 29 and December 3, 2014. In the course of the hearing, Father, Mother, Mother's husband, and Mother's father testified and seven exhibits were admitted, including a transcript of the hearing on the temporary restraining order, Mother's medical records, and the deposition of Dr. Harry Steuber, a psychologist who performed an evaluation of Mother. The magistrate thereafter issued a memorandum opinion, which was incorporated into an order, entered April 20, 2015. The magistrate found that a material change in circumstances had occurred "based upon the previously unknown extent of Mother['s] mental health issues resulting in Mother's various hospitalizations, " as well as "Mother's lack of veracity to the Father about the nature and extent of her mental health issues and her resulting ability to care for the child." The magistrate made findings pertinent to the factors at Tennessee Code Annotated section 36-6-106(a) and awarded custody to Father after finding "that the Father is the fit and proper person to exercise the duties of primary residential parent."[3] The magistrate modified the parenting plan to, inter alia, grant Mother unsupervised parenting time from 10 a.m. on Saturday to 4 p.m. on Sunday on the first and third weekend of each month; provide a holiday visitation schedule; permit Mother to visit with the child at school; provide that "major decisions . . . shall be made by the Father"; and require Mother to pay $213 per month in child support. The magistrate also entered a $2, 343 judgment in favor of Father for past child support and awarded Father $9, 930 in attorney's fees. Mother filed a notice of appeal on May 22, 2015, and this Court remanded the case for entry of an order by the juvenile court confirming the magistrate's decision. Pursuant to Tennessee Code Annotated section 37-1-104(f) and Rule 4(d) of the Tennessee Rules of Juvenile Procedure, the juvenile court submitted a supplemental record, which contained a confirmation order entered by the juvenile court judge on April 24, 2015.

         Mother appeals, articulating the following issues:

1. Whether the trial court abused its discretion in making its findings, conclusions and permanent parenting plan order.
2. Whether the trial court erred in restricting Mother's parenting time.

         II. Standard of Review

         In Armbrister v. Armbrister, our Supreme Court set forth the standard of review to be applied in this case:

In this non-jury case, our review of the trial court's factual findings is de novo upon the record, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. We review the trial court's resolution of questions of law de novo, with no presumption of correctness. …
A trial court's determinations of whether a material change in circumstances has occurred and whether modification of a parenting plan serves a child's best interests are factual questions. Thus, appellate courts must presume that a trial court's factual findings on these matters are correct and not overturn them, unless the evidence preponderates against the trial court's findings.

414 S.W.3d 685, 692-93 (Tenn. 2013) (internal citations and quotations omitted).

         III. Analysis

         In his petition, Father sought to be named as primary residential parent and for the court to determine Mother's parenting time; at the hearing on the petition, Father requested that the parenting schedule put in place in the July 1 order, in which Mother was permitted supervised visitation on Saturdays from 8:00 a.m. to 6:00 p.m., be left in place.

         In our resolution of the matters raised on appeal, we are reviewing the court's application of the two-step analysis under Tennessee Code Annotated section 3 6-6-101(a) (2014) to requests made in juvenile court to change the designation of the primary residential parent or to modify the residential parenting schedule. In re Teven A., No. M2013-02519-COA-R3-JV, 2014 WL 7419292, at *3 (Tenn. Ct. App. Dec. 29, 2014). The threshold determination for either is whether a material change in circumstances has occurred; if so, the court then considers whether a change in primary residential parent is in the child's best interest by examining the factors at Tennessee Code Annotated section 36-6-106(a). Armbrister, 414 S.W.3d at 697-98; Gentile v. Gentile, No. M2014-01356-COA-R3-CV, 2015 WL 8482047, at *4 (Tenn. Ct. App. Dec. 9, 2015).

         A. Material Change of Circumstance

         When a change in designation of the primary residential parent is sought, Tennessee Code Annotated section 36-6-101(a)(2)(B) requires the petitioner to prove by a preponderance of the evidence that a material change of circumstance occurred; he or she is not required to prove that a substantial risk of harm to the child exists. "The change must be 'significant' before it will be considered material. In re T.C.D., 261 S.W.3d 734, 744 (Tenn. Ct. App. 2007). When a modification of the residential parenting schedule is sought, however, a material change of circumstance must be found to have occurred, but "[t]he threshold for finding a material change . . . is low." Gentile, 2015 WL 8482047, at *7 (citing Rose v. Lashlee, M2005-00361-COA-R3-CV, 2006 WL 2390980, at *2 n.3 (Tenn. Ct. App. Aug. 18, 2006)); Tenn. Code Ann. § 36-6-101(a)(2)(C).

         In a section titled "Material Change of Circumstance, " the order states in full:

In Order to modify the current court order of custody, the court must find a material change of circumstance, in accordance with T.C.A. § 36-6-101(a)(2)(B), exists since the entry of the last Order of the Court. In this case, the court so finds based upon the previously unknown extent of Mother['s] mental health issues resulting in Mother's various hospitalizations. Additionally, the court has weighed Mother's lack of veracity to the Father about the nature and extent of her mental health issues and her resulting ability to care for the child as [a] significant fact in determining [that a] material change of circumstance has in fact occur[r]ed. Although the court acknowledges that the first two of the hospitalizations occurred during Father's parenting time, the third did not. Additionally, these symptoms did not exhibit themselves inside a vacuum coinciding with the date of hospitalizations. The court finds that Mother suffers from chronic mental health and substance abuse issues which have a negative impact upon her ability to care for the child in this case the extent of which was not previously considered by the court or the parties.

(Emphasis added.)

         Mother does not contest the holding that a material change of circumstance occurred but argues that the evidence in the record does not support the finding, italicized above; she argues that there is "no evidence . . . to indicate that, at the time of trial, Mother lacked an ability to care for Emily." She relies upon the VA medical records and Dr. Steuber, which she contends "indicate, in no uncertain terms, that Mother was capable of caring for Emily on a shared schedule, that Mother is at low risk and required no interventions of any kind." Mother's brief does not cite to the record to support this statement. Upon our review, the holding is supported by the record, specifically, Father's testimony and the medical records, as detailed below.

         The medical records span more than 300 pages dating back to June 2013 and cover Mother's three hospitalizations (in November 2013, January 2014 and February 12 through March 3, 2014). Numerous psychiatry and psychology outpatient notes are recorded. From the February through March 2014 hospitalization, the medical records report: that "she is here on court mandated psychiatric care and will stay for 14 days minimum"; that "Patient has been diagnosed with severe and persistent mental illness and has received either 30 or more days of psychiatric hospital care or has had three or more episodes of psychiatric hospitalization"; that "Patient cannot be left alone with kids"; that Mother was educated about dangers of marijuana and alcohol use in children's presence; and that "Miss C. should not be left alone with the kids given Miss C.'s recent psychotic flare up and continued marijuana and alcohol use." The medical records show that Mother tested positive for cannabis on February 12; that her thought process was "circumstantial, delusional at times"; that she has "[c]hronic mental health issues; chronic substance use issues; medication non-compliance"; and that her "[c]hief complaint and goal for treatment [were]: marijuana use; paranoid delusions." A doctor's progress note from February 26, 2014 reads:

P[a]t[ient] is exhibiting full blown symptoms of Sc[h]izophrenia and it seems that cannabis is not the only factor that has attributed p[a]t[ient]'s frequent episodes of psychosis. Additionally, DCS needs to be informed that p[a]t[ient] can not have custody of kids due to risk of relapse. P[a]T[ient] needs to be stable for at least 6 months before she could be left alone with her kids. P[a]t[ient] has immediately relapsed in the past few months, does not agree to take IM Meds and had poor compliance in the past.
Will appreciate SW assistance in contacting the DCS 7 informing them of the risk involved."

         The records also report that, during that same hospitalization, Mother attempted to hide a digital key to the ward in which she was being housed; the doctor's note indicates that Mother was planning to escape. Progress notes from a previous hospitalization in January 2014 reflect a diagnosis of "bipolar- mixed with psychosis" and "cannabis use disorder severe"; it also states that Mother "was admitted via the emergency department on January 18, 2014, after being brought by police at family's request for bizarre behavior around her kids." On January 23, 2014, a progress note from a doctor states that "Patient is wanting to go home tomorrow. One concern is that she did not follow up at the time of her last discharge." That last discharge was on November 25, 2013, after being hospitalized on November 21 for the electrolyte imbalance and due to reports from her family that she was "irritable, agitated, using profanities and bizarre behavior lasting 4 days." Following her discharge, a progress note dated January 6, 2014 by a clinical psychologist reflects that Mother attended weekly therapy ...


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