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In re Wyatt B.

Court of Appeals of Tennessee, Knoxville

July 26, 2017

IN RE WYATT B.

          Session June 21, 2017

         Appeal from the Juvenile Court for Hamilton County No. 267068, 267592, 268180 Robert D. Philyaw, Judge

         This appeal concerns a change of child custody. Jonathan B. ("Father") filed a petition against Tabitha O. ("Mother") in the Juvenile Court for Hamilton County ("the Juvenile Court") seeking to become the primary residential parent of the parties' minor child, Wyatt B. ("the Child"). After a trial, the Juvenile Court found a material change in circumstance sufficient to modify custody and that changing the Child's primary residential parent from Mother to Father was in the Child's best interest. Mother appeals. We affirm the judgment of the Juvenile Court.

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

          Jacqueline Strong Moss, Chattanooga, Tennessee, for the appellant, Tabitha O.

          Robert B. Pyle, Chattanooga, Tennessee, for the appellee, Jonathan B.

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Charles D. Susano, Jr. and John W. McClarty, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         Mother and Father are parents of the Child, who was born in October 2009. Mother and Father never married. Ten months after the Child's birth, Mother and Father separated. The Child suffers from eosinophilic esophagitis. In 2011, a parenting plan was entered by court order. Mother was designated primary residential parent under the original plan. Father was to have the Child every other weekend, with additional time as agreed. At one point, Mother relocated to North Carolina from Tennessee. Father filed a petition in opposition to the relocation. Father also petitioned for custody of the Child. Additional procedural events unfolded in this case leading to a trial on the issue that is now before us on appeal: whether a material change in circumstance occurred sufficient to modify the Child's primary residential parent from Mother to Father. The trial was in July and September 2016. We next cite to the relevant testimony from trial.

         Officer Kevin Otto ("Otto") of the Chattanooga Police Department testified. Otto stated that he had been to Mother's home several times in the past year at Father's request. According to Otto, a court order reflected that Father was entitled to visit the Child on certain occasions, but that Father's access to the Child had been denied. However, Otto also testified to one incident in which he planned to take out a warrant against Father for custodial kidnapping had Father not returned the Child to Mother by midnight.

         Father testified, in part, as follows:

Q. Okay. Are there any other problems that are going on that you want the judge to address when he issues his ruling in this case?
A. Other problems have been that she just takes everything in her own hands. She pretty much just thinks everything is her idea and it's going to go her way. And there's usually nothing I can do about it. So that has been a problem.
Q. Give some examples.
A. Like going to pick him up. I always think that it should be me and her that does the exchange, where she always throws her grandparents in it so she don't have to deal with it. I mean, I have to be there. I don't see why she doesn't have to be there. And she says she doesn't, so she's not.
Q. And you have a mother that's very involved with the child?
A. Yes.
***
Q. All right. There was a period of time -- let's talk a little bit about the doctors. When Wyatt was first involved with medicine, when he first got -- discovered this, it was discovered by a Chattanooga doctor; is that right?
A. Yes. It was discovered by Jeremy Screws at T. C. Thompson.
Q. Okay. And when did -- when and why did Dr. Screws get out of the picture?
A. She -- there was a visitation where I got him and he was supposed to have vegetables only, I believe, is what it was at that time, or soy only, and she had sent beef stew with me for him to eat. Of course, he was not supposed to have potatoes. And there was potatoes in the soup. Well, she told me, "Well, just take the potatoes out." Well, to me, that did not seem right. So I actually took him to Dr. Screws and confronted him about it. And Dr. Screws was going to turn her in for -- I forget how it was worded. But neglect of feeding him right. She wasn't feeding him right. So as soon as she caught word of that, she left Dr. Screws and went to Vanderbilt. I guess so that she didn't get in trouble.
Q. All right. And how long were y'all with Vanderbilt?
A. About three or four years, I believe.
Q. All right.
A. It was a good amount of time.
Q. How did you-all and Tabitha get along with the Vanderbilt doctors?
A. At first I was not even allowed to be involved. She had me blocked from everything. I had to eventually come to the Court and get a piece of paper saying that I had rights to be there. And I had to submit them to all of his doctors. I had to find all his doctors myself. I had to call Vanderbilt. I went through trouble just trying to find out when his appointments were. It wasn't until he had been there about a year later, I finally got all the doctors on the same page and it all started to work. Towards the end it worked well. All the doctors knew who I was, knew who she was, and knew the situation. So it all worked very well in the end. And, in my opinion, they fixed it.
***
Q. All right. Tell the Court what problems you've been having when you get notified of doctor's appointments and show up.
A. The last one I had the biggest problem with was the dietitian appointment. And I took off work the whole day and I sat in the doctor's office for up to two hours waiting on Tabitha and Wyatt to show up. They never showed up. They never called in to reschedule. And I was never told of a reschedule date. Other times I've had problems. I have to call the doctor myself and get when his next dates are, next appointments. But here recently she's told me about a couple in October. I think October the 19th is the next one. Recently has been the only time she's ever told me without me having to find out first. She's never told me when she found out.
Q. Okay. And under this new agreement, assuming it's acceptable to the Court and it's approved by the Court, you would still want to make sure that if she changes the date, you find out when she finds out?
A. Yes.
Q. Now, you said you sat there for two or three hours. When did you actually find out that that appointment had been canceled?
A. I actually went up -- after an hour and 45 minutes, I think it was, I finally got up and went to the front desk and asked how long it takes till they actually cancel the appointment. And they said, "Well, usually an hour or two." And I said, "Well, it's been almost two hours." So they wrote me a note saying that -- like, what they would send her in the mail, saying that she didn't show up and she needed to call in and reschedule. And I never was notified of the reschedule. So about two hours.
Q. Did you eventually find out when it was rescheduled?
A. After it happened, yes.
Q. Okay.
A. So after it happened, she called me and provided me the next weekend I picked him up with the paperwork. But this was after the appointment. So I never had ...

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