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In re Ashton

Court of Appeals of Tennessee, Nashville

March 22, 2017


          Assigned on Briefs January 4, 2017

         Appeal from the Juvenile Court for Sumner County No. 2010JV926 Barry R. Brown, Judge

         This appeal arises from a juvenile court's modification of a primary residential parent designation. The mother appeals the juvenile court's findings that a material change in circumstance had occurred and that a change in the primary residential parent was in the child's best interest. The mother also challenges the juvenile court's denial of her Rule 60.01 motion. Upon review, we conclude that the juvenile court erred in relying on a report that was not entered into evidence at the hearing, but the error was harmless. Even excluding the report, the evidence does not preponderate against the juvenile court's findings that a material change in circumstance had occurred and that modification of the primary residential parent designation was in the child's best interest. We further conclude that the juvenile court did not abuse its discretion in denying the mother's Rule 60.01 motion.

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

          Georgina K. Hughes, Mount Juliet, Tennessee, for the appellant, Laura S.

          Laura A. Frost, Gallatin, Tennessee, for the appellee, Jeremy V.

          W. Neal McBrayer, J., delivered the opinion of the court, in which John W. McClarty and Arnold B. Goldin, JJ., joined.


          W. NEAL McBRAYER, JUDGE.

         I. Factual and Procedural Background

         Ashton V. was born in July 2010 to an unmarried couple, Laura S. ("Mother") and Jeremy V. ("Father"). By statute, in the absence of a custody order, custody of a child born out of wedlock is with the mother. Tenn. Code Ann. § 36-2-303 (2014). In January 2015, in response to Father's request for specific parenting time, the Juvenile Court[1] for Sumner County, Tennessee, entered an order naming Mother primary residential parent and granting Father parenting time every other weekend. Subsequently, the court granted Father additional parenting time on Wednesdays.[2]

         On September 9, 2015, Father filed a petition seeking a change in the primary residential parent designation. He alleged a material change in circumstances had occurred in that Mother was uncooperative and confrontational, unwilling to foster his relationship with Ashton, and attempting to alienate Ashton from him.

         A. Proof at the Hearing

         1. Day One of Testimony

         The court initially heard testimony on Father's modification petition on January 7, 2016. Both Mother and Father testified as well as the paternal grandfather, the father of Mother's other child, and the fiancée of the other father.

         At the time of the hearing, Father was working toward an associate's degree in criminal justice at Volunteer State Community College, with the ultimate goal of employment as a police officer. He lived with his girlfriend in Westmoreland, Tennessee. Father asked to be named primary residential parent with Mother having parenting time every other weekend and three non-consecutive weeks in the summer. He maintained that, if he were primary residential parent, he would be willing to foster a good relationship between Ashton and Mother.

         According to Father, he filed his modification petition because of Mother's refusal to encourage his relationship with his son. He complained that, after the entry of the custody order, Mother would not communicate with him. Mother did not inform him about his son's school events or doctor appointments.

         At the time of the hearing, Ashton was five and attended kindergarten in Gallatin, Tennessee, near Mother's home. Mother's work schedule prevented her from picking Ashton up from school because she worked until 8 p.m. five or six days each week. At Mother's request, Ashton's paternal grandparents often picked him up from school and cared for him until she finished work. According to Father, "if she knew I was going to be seeing him, she would hold him back" from his grandparents. Father claimed that Mother initially refused his offer to pick Ashton up after school himself. In addition, when Mother needed a caregiver for Ashton on weekends, she forced her other son's father to keep both children in an effort to keep Father away from Ashton. Father testified that Mother had violated the custody order with regard to his summer parenting time, and the court had found Mother in contempt.

         Father told the court that Mother also made false accusations of abuse against him in an effort to damage his relationship with Ashton. Since the custody order was entered, Mother had reported Father to the police for abuse three times. She also reported him to DCS twice for suspected abuse. Neither the police nor DCS ever filed any charges against Father. According to Father, Ashton was present when the police arrived at his house in response to Mother's complaints.

         Although Father agreed that he had a good relationship with his son, he testified that he was concerned that Mother's tactics were beginning to succeed. Ashton had recently been asking to return to Mother's house during Father's parenting time.

         In addition to Mother's unwillingness to encourage his relationship with Ashton, Father claimed that Mother had exposed Ashton to domestic violence. In November 2014, Mother filed an assault report against Richard Smith, her then live-in boyfriend, and Mr. Smith was arrested. Ashton was in the home during the November incident. Despite the domestic violence, the couple married in January 2015.

         In the fall of 2014, Ashton developed an involuntary tic. Father explained that he took Ashton to see a neurologist in April who determined that the tic was caused by stress. A letter from the neurologist confirmed that Ashton had developed a motor tic disorder. Because, at the time of the evaluation, his symptoms were decreasing, the doctor believed that the tic could be transient. Father claimed that the tic had worsened since Ashton's initial evaluation.

         The neurologist recommended that Ashton see a counselor. Father claimed Mother delayed several months, and eventually, Father made the counseling appointment. At the time of the hearing, Ashton had been attending counseling sessions for approximately two months.

         Father testified that Mother often delayed or failed to schedule necessary medical care for his son and tried to prevent him from being involved in Ashton's medical care. He claimed Mother became so uncooperative about making Ashton's appointments and sharing dates with him that he began making the appointments himself.

         Father also expressed his concern about Ashton's current bedtime at Mother's house. At some point, Mother had agreed that Father could pick Ashton up after school. Father reported that Ashton complained of being extremely tired after school and often took long naps. By contrast, when Ashton spent weekends with Father, he had a set schedule and a proper bedtime.

         On cross-examination, Father conceded that since September 2015 he had received all of the parenting time to which he was entitled under the current custody order. He admitted that Mother allowed him additional parenting time after school. However, Father pointed out that in the week before the hearing, Mother had enrolled Ashton in after school day care, eliminating Father's additional time.

         Father agreed that Ashton had a strong bond with both parents. Other than the occasional sickness and the nervous tic, Ashton was healthy and did well in school.

         The paternal grandfather testified about the loving bond between Father and Ashton. He agreed that Mother often asked the grandparents to keep Ashton instead of Father. He explained that, when Ashton was at the grandparents' house, Mother would call to inquire who was there.

         The court also heard testimony from Brian Baker, the father of Mother's other child, and his fiancée, Kimberly Meyers. Mr. Baker testified that Mother had threatened to keep him from spending time with his own son if he did not agree to care for Ashton at the same time. Mr. Baker acquiesced to her demands because "it's her way or no way."

         Ms. Meyers confirmed that the couple had cared for Ashton at least five weekends in 2015. She explained that she refused Mother's request that she keep Ashton after school because she knew Father was willing to do it. Ms. Meyers also told the court that she had witnessed Mother make disparaging remarks about Father in front of Ashton.

         Ms. Meyers provided additional testimony about Mother's relationship with her husband, Mr. Smith. According to Ms. Meyers, Mr. Smith moved into Mother's home in the summer of 2014. Mother had confided to her that Mr. Smith had an alcohol and drug problem and was often violent towards her. The couple married in January 2015, but the relationship was over by April. Subsequently, Ms. Meyers discovered that Mr. Smith had a police record for domestic assault.

         For her part, Mother claimed that she always encouraged a good relationship between Father and Ashton. While she may have made some disparaging remarks about Father in conversations with Mr. Baker and Ms. Meyers, she denied she ever made any negative comments about Father in Ashton's presence. She maintained that she notified Father of all doctor appointments and invited him to school events. She even offered Father additional parenting time after school in an effort to encourage his relationship with Ashton. According to Mother, the previous contempt finding was due to Father's lack of cooperation, not hers.

         Mother denied Ashton was stressed. She claimed that Ashton's tic was a result of near-sightedness. According to Mother, after she bought glasses for Ashton, his tic disappeared.

         Mother admitted that she worked four or five days per week until 8:30 p.m. Her workload had recently increased due to a co-worker's promotion. She also worked every other Saturday but claimed she tried to work on those Saturdays when the children were with their fathers. She denied threatening Mr. Baker with less parenting time if he did not agree to keep Ashton. She claimed that she only asked Mr. Baker to keep Ashton on a few Saturdays while she was working. She explained that she did not ask Father because he always demanded to keep Ashton overnight.

         Mother claimed that her abuse reports were motivated by legitimate concerns for Ashton's safety. On one occasion, Father had been "hateful" and "rude" when he picked Ashton up for his visitation. Because she feared Father would hurt Ashton, she called the police to perform a welfare check. She conceded that the police investigation had revealed no cause for alarm. In December 2015, she took Ashton to the emergency room because he had returned from Father's house with bruises. The hospital personnel called DCS, not Mother. She denied that she had filed the other abuse reports.

         Mother brushed off any concerns about her husband, Mr. Smith. She agreed that she had filed charges against Mr. Smith for domestic assault in September and November 2014 and then married him the following January. According to Mother, Mr. Smith suffered from PTSD. After receiving probation on the assault charges, he attended a rehabilitation program, quit drinking, and started counseling. Mother explained that she and Mr. Smith had been through a "rough patch" but were doing better now and had recently celebrated their one-year anniversary. She described Mr. Smith as "the best stepdad that I could ever ask for for my kids." She explained that Mr. Smith was only home a few days each week because he worked in Columbia, Tennessee. When working, he stayed at his mother's house in Columbia.

         Because of the court's schedule, the hearing was adjourned at the end of Mother's testimony, and another hearing date was set for March 4, 2016. The court also announced to the parties that CASA[3] would be involved in the case. On January 11, 2016, the juvenile court directed the CASA volunteer to ...

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