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Gider v. Hubbell

Court of Appeals of Tennessee, Nashville

March 29, 2017


          Session Date: January 19, 2017

         Appeal from the Juvenile Court for Davidson County No. 20085426, PT191027, PT202082 Sheila Calloway, Judge

         This case involves the modification of an agreed parenting plan under which the child's mother was the primary residential parent. After the father obtained an injunction to prevent Mother from homeschooling the child, the mother sought to obtain sole decision-making authority. The father then filed a petition seeking to be named primary residential parent and sole decision maker. The juvenile court granted both of the father's requests and denied the mother's request. The court also placed several limitations on the mother's visitation and enjoined her use of social media and from making disparaging remarks about the father to the child or in the child's presence. We conclude that certain of the restrictions placed on Mother's communications were overly broad or vague. Accordingly, we modify the injunction the juvenile court placed on Mother's communications. We affirm the judgment in all other respects.

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

          Lydia Ann Hubbell, Antioch, Tennessee, pro se appellant.

          Sarah L. Reist, Nashville, Tennessee, for the appellee, Sinan Gider.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.



         I. Factual and Procedural Background

         The short-term relationship of Lydia Hubbell ("Mother") and Sinan Gider ("Father") produced a child, Dilara. Shortly after Dilara's birth, in October 2008, the parties entered into a parenting agreement in which Mother was designated as primary residential parent and Father had parenting time 180 days out of the year. However, the parents did not follow the parenting plan and, instead, operated under an informal arrangement whereby each spent substantially equal time with the child.

         A. Petitions to Modify the Custody Arrangement

         On May 20, 2014, in the Juvenile Court for Davidson County, Tennessee, Father filed a pleading entitled, "Petition to Establish Parenting Plan and Deny Mother's Request to Homeschool the Child." In his petition, Father alleged that there had been a material change in circumstances due to Mother's unstable mental health, problems with her physical health, and the condition of Mother's home. He also alleged that homeschooling, as proposed by Mother, was not in the child's best interest. Father requested that he be named primary residential parent with Mother having parenting time two days a week or every other weekend. The same day, Father also filed a motion to enjoin Mother from homeschooling Dilara. Mother filed an answer/counter-petition on June 6, 2014, in which she sought sole decision-making authority for the child.

         On July 15, 2014, a magistrate judge entered an order enjoining Mother from homeschooling the child based on concerns over Mother's lack of organizational skills and health. The order granted Father permission to apply to private school for the child, and if the parties could not agree upon where to send Dilara to school, they were to return to court for a hearing on the matter. After conducting a hearing, the magistrate entered an order on July 21, 2014, stating that Dilara would attend a public elementary school for which Mother was zoned.

         Subsequently, Father filed a notice of nonsuit. The magistrate dismissed Father's petition without prejudice but kept its orders enjoining the Mother from homeschooling and ordering the child to attend public school in place. For her part, Mother filed a motion requesting to proceed as plaintiff on her request for sole decision-making authority and to homeschool the child, which was granted.

         On January 5, 2015, the magistrate judge entered an order ruling upon Mother's counter-petition. The magistrate kept the previous order enjoining Mother from homeschooling in place and ordered parents to continue with joint decision-making. The parents were also ordered to attend a co-parenting class. Thereafter, Mother filed a motion for rehearing with the juvenile court judge.

         On February 24, 2015, Father filed a new petition to modify and/or establish a permanent parenting plan. Father again proposed that he be named primary residential parent, but this time, he proposed that Mother exercise parenting time from Saturday at 3:00 p.m. until Sunday at 3:00 p.m. and on Wednesdays after school from 3:00-6:00 p.m. This proposal represented a significant change from their prior informal parenting arrangement. Father also requested that he be granted sole educational decision-making authority for the child.

         Mother's request to rehear and Father's petition to modify and/or establish a permanent parenting plan were combined and set for trial before a juvenile court judge. Pending trial, the court ordered that Father would exercise parenting time during the week and Mother would exercise parenting time every weekend from after school on Friday to 6:00 p.m. Sunday.

         B. Proof at Trial

         The court held the trial over five days in April, May, and August. Prior to the trial, under a court order, Court Appointed Special Advocates ("CASA"), the child's Guardian ad Litem (the "GAL"), and the Tennessee Department of Children's Services ("DCS") evaluated Mother's home. The home was found to be "inappropriate for raising a child." Also, during the same time period, Mother was charged with stalking Father, and the Circuit Court of Davidson County, Tennessee entered an order of protection, which prohibited Mother from having contact with Father or the child for one year.

         At trial, several witnesses testified, including Mother, Father, Mother's brother, two friends of Mother's, the child's kindergarten teacher, the school principal, and the CASA volunteer[1] assigned to the case. At the outset, Mother[2] stipulated:

My house is a mess. I've been on disability for twelve or thirteen years. I currently have physical health issues . . . . I have had [ ] very serious mental health issues with depression . . . . I'm stable now . . . [but] I will agree, I have a history of mental health issues: anxiety, depression, that sort of thing.

         Mother went on to explain her desire to obtain sole decision-making authority, specifically concerning the child's education. She testified that the joint decision-making arrangement was no longer workable because of Father's unwillingness to communicate with Mother. She claimed that Father was "controlling and threatening" and that she often felt bullied by Father. Mother admitted, however, that Father is not a violent person. Mother stated that, while she valued Father's opinions and wanted his input, she did not want Father dictating Mother's home life and what she could do with the child during her parenting time.

         According to Mother, she was the parent better equipped to make decisions in Dilara's best interest. She claimed more experience in meeting the needs of young children and to have spent more time actively engaged with Dilara. Mother described Father as not "engage[d] with Dilara to the same degree" and as not acknowledging that Dilara had "special educational needs."

         Throughout her testimony, Mother indicated that she sought sole decision-making authority primarily because she still wished to homeschool Dilara. Mother called Kimberly Schletzer, a school psychologist, to testify concerning a psychological assessment she had performed on Dilara. According to Ms. Schletzer, Dilara was intellectually gifted and academically advanced. Mother testified that, because she was academically advanced, Dilara's needs were not being met in public school. Specifically, Mother believed that the child was bored at school and developed behavior problems as a result.

         Mother felt that her past experience in early childhood education and particular understanding of her child's needs made homeschooling the best option for Dilara. Additionally, Mother testified that, before Dilara started kindergarten, Mother personally taught the child how to read and write at home.[3] According to Mother, a flexible homeschooling schedule would give Dilara more time to explore her talents and develop skills.

         When questioned by Father's counsel, Mother conceded that she had shared details with the child about the custody case. She further admitted to discussing other topics of a sensitive nature with the child. When asked if she believed these topics were appropriate to discuss with a child, Mother said, "I do . . . . I don't think there's anything wrong with saying that." She testified that she did not believe there is any age too young to talk to a child about most things.

          Concerning the condition of her home, Mother conceded that "my strength isn't spending time on my house." She admitted that her home was messy and described the living environment as "minimally adequate." However, Mother testified that the living environment was still functional, and she felt that there were no threats to the child's health or safety.

         As to her health, Mother emphasized that her health problems had never prevented her from adequately meeting Dilara's needs, and according to Mother, she was "mentally stronger" than she had ever been. She testified that, although her health problems kept her from obtaining employment outside the home, she was still able to personally care for Dilara and get her where she needed to go.

         Still, Mother testified to chronic health issues. In 2012, she suffered from a "severe chronic fatigue episode" for eight months. She conceded that most days she was in pain and that the stresses of litigation had led to more health problems. According to Mother, she struggled with her health, on average, two to three days per week, and on her worst days, she could only get out of bed for 10 or 15 minutes at a time. At times she had to cancel plans at the last minute due to her health. She also admitted that, despite the close distance between her home and Dilara's school, the child was occasionally dropped off late.

         Regarding the visitation schedule, Mother felt it should remain the same as under the previous informal arrangement, whereby the parents enjoyed substantially equal parenting time.

         Mother called her brother, Tod[4] Missick, to testify concerning the child's relationship with Mother. Mr. Missick testified that Mother's health issues did not prevent her from meeting the child's needs and that he had personally witnessed Mother's involvement in teaching Dilara to read and write. He also explained that Dilara seemed to enjoy spending time at Mother's home and that her needs were well met in both parents' homes. Though he agreed that Mother's house was messy, he had no concern for Dilara's safety.

         Mother also called Karen Shearer and Kathy McGee, two friends of Mother, to testify. Both women had known Mother for several years and testified that Mother frequently attended church with Dilara. Ms. Shearer and Ms. McGee each testified to teaching Dilara in Bible class and found her to be well behaved. Additionally, Ms. Shearer stated that Dilara got along well with other children. Ms. McGee explained that she had witnessed Mother's positive relationship with the child, and according to Ms. McGee, Dilara was healthy and well-cared for despite Mother's health conditions. Ms. McGee acknowledged the cluttered condition of Mother's home but testified that she did not feel the home was unhealthy or unsafe. She further explained that she was familiar with the homeschooling program that Mother sought to use and opined that "it would be good for Dilara to be homeschooled by Mother."

         Next, Father testified to his belief that Mother's health had affected her ability to care for the child. He stated that he often had to pick Dilara up from Mother's home to take her to school, even during Mother's parenting time. He claimed that Mother had, on occasion, threatened to harm herself and had also experienced anxiety attacks during her parenting time, forcing Father to have the child picked up early.

         Father wished to be named the primary residential parent and sole decision maker because he could provide the child with "more normalcy, " which he believed was in the child's best interest. He emphasized that Mother continued to share inappropriate information and behave irresponsibly in the child's presence. Father stated that his work schedule was flexible, which would allow him to spend sufficient time with Dilara. Father further asserted that the parties' joint decision making arrangement no longer worked, mainly because he and Mother could not agree on the homeschooling issue. He believed that the condition of Mother's home, her mental condition, and her organizational skills compromised Mother's ability to educate the child. He also disagreed with Mother on disciplinary matters.

         Father called both the child's kindergarten teacher and school principal to testify concerning Dilara's behavior at school and their interactions with Mother. Jennifer Boyette, Dilara's teacher, testified that Dilara struggled to behave properly in groups with other students and would often show aggression by screaming. Ms. Boyette also stated that Mother had, in the past, spoken to her in a degrading manner and bombarded her with frequent emails.

         Andrea Woodard, the school principal, testified that Dilara had become aware of the tension between her parents. Ms. Woodard explained that at school Dilara discussed the fact that Mother had shared details of the custody battle and other sensitive topics with Dilara. According to Ms. Woodard, Dilara exhibited a "high level of anger" and had "physically lashed out against her peers. As a result, Ms. Woodard had several conversations with Mother concerning inappropriate topics to discuss with children.

         Ms. Woodard opined that homeschooling was not suitable for Dilara because she needed to be around children her own age for social and emotional development, as she tended to struggle with such interactions. Ms. Woodard also felt that the structure of public school benefited Dilara. She testified that her school offered programs for gifted children and that Dilara was, at that time, permitted to attend first grade for reading.

          Finally, Tricia Reynolds, the CASA volunteer assigned to the case, testified concerning Mother's home visit and Mother's behavior. Ms. Reynolds did not believe that Mother's house was an appropriate environment to raise a child. She explained that the home had three bedrooms but only the living room was actually used. The other rooms were "stuffed" with Mother's belongings, and trash was scattered throughout the home. Additionally, at least one bedroom and the basement were completely inaccessible. According to Ms. Reynolds, the living room contained one bed in which both Mother and the child slept and occasionally did school work. She testified that she recommended homemaker services to Mother and offered to help Mother get her home in order, but Mother refused assistance.

         Still, Ms. Reynolds's greatest concern was Mother's inability to control what she said to Dilara. She explained that Mother discussed matters with Dilara that were inappropriate and that could have a negative psychological impact on the child. Ms. Reynolds also testified that Mother's behavior provoked concern that she was not ...

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