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C.D.B. v. A.B.

Court of Appeals of Tennessee, Nashville

April 26, 2018

C. D. B.

          Assigned on Briefs March 26, 2018

          Appeal from the Circuit Court for Davidson County No. 13D-2846 Philip E. Smith, Judge

         Mother appeals from the denial of her motion to recuse the trial court after the trial court, sua sponte, ordered Mother to undergo a mental examination pursuant to Rule 35.01 of the Tennessee Rules of Civil Procedure. Because the trial court's actions in this case do not create the appearance of bias, we affirm.

         Tenn. Sup. Ct. R. 10B Accelerated Interlocutory Appeal; Judgment of the Circuit Court Affirmed

          Cynthia A. Cheatham, Nashville, Tennessee, for the appellant, C.D.B. [1]

          A.B., Longmont, Colorado, Pro Se.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J., joined.




         This is an appeal from the trial court's decision to deny a recusal motion. The parties, Petitioner/Appellant C.D.B. ("Mother") and Respondent/Appellee A.B. ("Father") were engaged in post-divorce child custody proceedings in the Davidson County Chancery Court at the time the recusal issue arose.[2] Although the parties' marriage spanned only eight months, the parties have been engaged in post-divorce custody litigation concerning their one child for the better part of four years. In 2015, Father filed a petition to modify the parties' parenting plan, seeking an increase in the very limited supervised visitation that had previously been awarded in the parties' Colorado divorce. Mother opposed the change, alleging in a 2015 pre-trial brief that the child had made several statements causing Mother to become suspicious of sexual abuse by Father as early as 2012; Mother alleged that an investigation into the abuse allegations was ongoing with the Tennessee Department of Children's Services ("DCS").[3] Mother also alleged that Father had once engaged in domestic violence against Mother, resulting in criminal charges and a protective order; Mother admitted that the protective order, however, had expired.

         In his pretrial brief, Father denied the allegations of sexual abuse and alleged that Mother had made multiple allegations of sexual abuse against him since the child's birth, including eight referrals by Mother or someone on her behalf to DCS.[4] Father asserted, however, that every investigation was closed without evidence of sexual abuse. Based upon these allegedly unfounded allegations and investigations, Father contended that Mother knowingly making false allegations of sexual abuse was an attempt by Mother to interfere with his relationship with the child. In support, Father attached to his pre-trial brief a March 2015 interrogatory response submitted by Mother, in which she detailed seventeen interactions with law enforcement, child services, counseling, or nursing individuals concerning the allegations against Father regarding alleged abuse of both herself and the child.[5] Despite the serious allegations raised by Mother, she eventually agreed to significantly increase Father's parenting time, from just sixteen days per year with no overnight visits to ninety-six days per year with overnight visitation. An agreed order was entered to that effect in October 2015.

         In June 2016, Father had filed a second petition to modify the parenting plan, this time seeking to be designated the child's primary residential parent and to be awarded sole decision-making authority over the child. Contemporaneous with his modification request, Father also filed a criminal contempt petition against Mother due to her failure to abide by the parties' parenting plan. Father likewise asserted that a change in custody was warranted due to Mother's failure to comply with the parenting plan and the fact that she "regularly falsely" accused Father of sexual abuse of the child. Mother responded in opposition to Father's petition and filed a counter-petition seeking a slight decrease in Father's visitation.[6] The contempt petition was eventually dismissed by agreement of the parties.

         At some point, the trial court ordered that it would only consider circumstances existing following the entry of the 2015 parenting plan. The parties thereafter engaged in discovery based upon an agreed scheduling order; when Mother purportedly failed to timely disclose several experts regarding the sexual assault allegations, the trial court entered an order excluding the experts. In December 2017, Mother filed a motion for recusal of the trial judge, arguing that the exclusion of the experts was the result of bias. Relevant to this appeal, Mother alleged in her recusal motion that based upon allegations of abuse of the child, the child's counselor from the Sexual Assault Center "made multiple reports to [DCS]" about abuse allegedly perpetrated by Father. The motion noted further contact between the child and a mental health professional for a forensic evaluation related to the alleged sexual abuse of the child. Mother also alleged that Father had previously accused her of "poisoning [the child's] brain" with the sexual assault allegations. The recusal motion was eventually denied by the trial court and no interlocutory appeal resulted.

         A hearing on the parties' competing petitions regarding custody was set for January 30 and 31, 2018. The day of the scheduled hearing the trial court took the bench to announce that trial would not take place because the trial court, having read the parties' pre-trial submissions, sua sponte, lodged a motion for Mother to be examined under Rule 35 of the Tennessee Rules of Civil Procedure, discussed in detail, infra. In its oral ruling, the trial court stated the basis for its decision to move for a Rule 35 examination as

the numerous, numerous DCS filings that she has either made or someone made on her behalf has made. And I believe that there could possibly be parental alienation in this case. . . . I am thinking that will be necessary for me to address the best interest of the child.

         The trial court therefore directed the parties to appear the next day, January 31, 2018 to determine whether a Rule 35 examination should be ordered. The trial court noted, however, that if Mother was willing to waive the hearing and "allow[] [the trial court] to rule today, " the trial court would order the Rule 35 examination and stay the final hearing pending its completion. It appears that Mother did not agree to waive the hearing and allow the trial court to rule that day; as such, the parties were ordered to return to court the following morning. Later, the trial court entered a written order memorializing his oral ruling, captioned "Order Regarding Notice to Parties of Court's Oral Motion, Sua Sponte, for [Mother] to Submit to a Psychological Examination Pursuant to Rule 35[.]" Therein, the trial court reiterated that the basis of the ruling was "review of the Pre-Trial Briefs submitted by counsel for the parties . . ., as well as review of the entire record including pleadings in this matter." Based on these submissions, the trial court stated that it

has concerns regarding the numerous investigations of [DCS] regarding allegations of child abuse made by [Mother], or someone on her behalf. As a result, the Court does not believe it can make a ruling regarding the best interest of the parties' minor child absent a Rule 35 psychological examination of [Mother].

         Father and his counsel appeared as scheduled at the hearing. Mother and her counsel did not appear. According to Mother, the failure to appear was the result of her counsel's diligent efforts to file a written response to the trial court's sua sponte motion. A sixteen page response to the Rule 35 motion was faxed to the trial court on January 31, 2018, after the conclusion of the hearing. Therein, Mother argued that a Rule 35 examination was not warranted, that the Rule 35 criteria had not been met, that parental alienation was largely "junk science, " and that the trial court had no evidence of parental alienation, as the allegations in Father's pre-trial brief did not constitute proof. Mother also asserted that pursuant to the trial court's order limiting the proof to only those events that took place after the entry of the 2015 parenting plan, "there have been two (2) reports to DCS since that parenting plan was entered, neither made by [Mother] nor anyone on 'her behalf.'" As such, Mother requested the opportunity to place the trial court under oath and question the basis for the trial court's motion for a Rule 35 examination.

         At the hearing, the trial court noted Mother's absence, but no evidence was adduced.[7] Rather, the trial court ruled that Mother would be required to undergo a mental examination at Mother's expense. The trial court named the specific doctor to whom Mother was to see and ordered that Mother obtain the examination within forty-five days. Mother filed a motion to reconsider the trial court's ruling on February 2, 2018. Therein, Mother again argued that the trial court had no evidence from which to conclude that good cause existed to order a Rule 35 examination.

         At some point, Father filed a response in support of the trial court's motion for a Rule 35 examination. Therein, Father argued that a Rule 35 examination was warranted under the circumstances. Specifically, Father alleged that good cause existed for the examination because Mother, on her own or by another individual on Mother's behalf, had caused eight investigations to be conducted by DCS regarding child abuse of the parties' child. According to Father, Mother's mental health was in controversy due to Father's allegation that Mother's behavior has caused the child psychological harm. Father attached to his response a DCS document indicating that eight investigations had been initiated by DCS regarding allegations of abuse against the parties' child, as well as a December 2017 document indicating that a DCS investigation of sexual abuse allegations regarding the child had been closed due to lack of sufficient evidence to substantiate the allegations.[8]

         The trial court eventually entered its written order directing Mother to undergo a mental examination on February 21, 2018. Therein, the trial court ruled that a mental examination was necessary due to "the numerous referrals that Mother has allegedly made to [DCS]." The trial court also ordered that Mother was prohibited from taking the child to the Sexual Assault Center pending further orders of the court.

         In the meantime, Mother filed a second motion to recuse the trial judge on the basis of the trial court's ruling on the Rule 35 issue "before any hearing had commenced and before either party had even begun its proof." Mother asserted that in making the sua sponte Rule 35 "motion, " the trial court was essentially acting ...

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