Session April 19, 2018
from the Circuit Court for Knox County No. 126793 Gregory S.
appeal involves the issue of past child sexual abuse by a
parent. After the original trial de novo, the father was
found guilty of severe child abuse and was enjoined from
contact with the child and another daughter. A prior appeal
resulted in an affirmance of the trial court's finding.
In re Emmalee O., 464 S.W.3d 311 (Tenn. Ct. App.
2015). After permission to appeal was denied by the Tennessee
Supreme Court and the U.S. Supreme Court, the father filed a
motion to vacate or modify the 2014 ruling of the trial
court. After the trial court denied the relief requested, the
father again appealed. We affirm the trial court's
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Lee O., Knoxville, Tennessee, pro se appellant.
Herbert H. Slatery, III, Attorney General and Reporter, and
W. Derek Green, Assistant Attorney General, Nashville,
Tennessee, for the appellee, Tennessee Department of
Jane Lay, Knoxville, Tennessee, for the appellee, Trisha O.
W. McClarty, J., delivered the opinion of the court, in which
Charles D. Susano, Jr., and Thomas R. Frierson, II, JJ.,
W. MCCLARTY, JUDGE
("Father") married Trisha O. ("Mother")
in August 2006. Mother had two children from a prior
marriage. The marriage was the first for Father, then 50
years of age. Father and Mother had two daughters together,
Emmalee ("the Child"), born September 2007, and
Abigail, born in August 2009.
had already arisen in the marriage prior to Abigail's
birth. Father eventually left Mother's house, the marital
residence, and the couple began 50/50 visitation with the
March 2011, after the Child told Mother that Father had
rubbed her vaginal area, Mother took her daughter to the
children's pediatrician, Dr. Meyer, who examined the
Child, noticed vaginal irritation, and reported the matter to
the Tennessee Department of Children's Services
("DCS"). The initial report, however, yielded no
investigation by DCS. Mother monitored the situation and
sought advice from Licensed Clinical Social Worker Nan
Buturff. As noted in this court's prior opinion:
In late April 2011, the Child stayed with Father for another
visitation. Afterwards, the Child told Mother that she wanted
to go see Dr. Meyer, and that Father had "poked"
her in her vaginal area. Mother took the Child to Dr. Meyer
for another examination, which revealed irritation in the
vaginal area. Mother then took the Child to see Buturff.
Buturff asked the Child if anyone had touched her vagina. The
Child stated that Father had. Buturff subsequently reported
the matter to DCS, and these legal proceedings followed.
The Child underwent a forensic interview on April 29, 2011. .
. . The Child stated that Father had touched her vagina, or
"putty, " as she called it. . . .
4, 2011, DCS filed a petition for restraining order against
Mother and Father. The petition sought: (1) to restrain
Father from having contact with the children until further
order of the court; (2) a finding that the Child was a victim
of severe child abuse by Father; and (3) a finding that both
children were dependent and neglected as to Father.
2012, the juvenile court found that the Child and Abigail
were dependent and neglected and that the Child was the
victim of severe child abuse by Father. In re Emmalee
O., 464 S.W.3d 311, 314 (Tenn. Ct. App. 2015). After the
juvenile court denied Father's petition for rehearing,
the case was appealed to the trial court for a trial de novo.
a five-day trial, the trial court entered an order in January
2014 finding Emmalee to be the victim of severe child abuse.
The court concluded that Father, by the repeated
"poking" and "rubbing" of Emmalee's
vagina, had "sexually abused a child under thirteen
years of age by engaging in sexual contact for the purpose of
sexual gratification." Id. at 316-21. In March
2014, the trial court "enjoined Father from having any
contact with his two daughters . . . placed sole custody of
the children with Mother . . . and found the Child to be a
victim of severe child abuse by aggravated sexual battery
under Tennessee Code Annotated section 39-13-504."
Id. at 321. The issue of future visitation was
remanded to the juvenile court. The court observed that
Father could file a motion to modify the no contact order
after (1) completing a psychosexual evaluation, (2) providing
DCS with the evaluator's identity, (3) engaging in
recommended treatment, and (4) authorizing the release of the
psychosexual evaluation and treatment records to DCS.
appealed to this court, contending that any touching by him
of the Child was the result of normal parenting actions.
After thorough review, we affirmed the judgment of the trial
court on January 27, 2015. This court addressed the
"final and central issue" of whether clear and
convincing evidence supported the trial court's finding
that Father committed sexual abuse against the Child as
The evidence in the record on appeal, especially given the
Trial Court's credibility determinations, is quite
damning to Father. The Child made multiple disclosures to
multiple people that Father poked, rubbed, and otherwise
touched her vagina. The evidence is that the Child's
vagina was irritated upon return from visitation with Father.
The Child demonstrated mood swings and exhibited opposition
to going to Father's home during this period. During this
period, the Child engaged in self-touching behavior. Also
notable is the fact that the Child has consistently
identified only Father as the perpetrator of these actions.
All of these facts support a scenario whereby Father sexually
abused the Child by inappropriately touching her vagina.
Father, given the Trial Court's credibility
determinations, presented very little, if any, believable
evidence to the contrary.
Id. at 325.
prior decision, we observed that Father had "tried to
make this case about practically everything but whether he
abused the Child" and noted that Father has provided a
"detailed" explanation that he merely "cleaned
and examined Emmalee for a yeast infection or other health
problems." We observed:
In a way, Father explains too much. Far from serving as a
plausible explanation for the Child's disclosures,
Father's belated and hyper-detailed accounts of long ago
alleged yeast infection examinations ring to this Court, as
they did to the Trial Court, artificial. It is not surprising
that the Trial Court found Father not to be credible.
In this Court's judgment, there exists no substantial or
serious doubt that the disclosures by the Child, as supported
by the evidence, describe sexual abuse. Thus, we hold that
the evidence presented to the trial court against Father
rises to the level of clear and convincing. We, therefore,
affirm the judgment of the Trial Court.
Id. at 326. In June 2015, the Tennessee Supreme
Court denied Father's application for permission to
appeal. The U.S. Supreme Court denied Father's petition
for writ of certiorari the following October. Overton v.
Tennessee Dep't of Children's Servs., 136 S.Ct.
November 2015, Father filed a motion to set aside or provide
relief from the trial court's order, requesting
post-judgment relief under Rule 60.02 of the Tennessee Rules
of Civil Procedure. The motion requested dismissal on the
following bases: (1) the trial judge "was thoroughly
confused about the evidence present . . . and reached a
conclusion that was not just wrong, but was factually
impossible; (2) there was a question of judicial impropriety
in the case due to alleged ex parte communications resulting
in the no contact order between Father and Mother; and (3)
there was new evidence garnered from a child support
proceeding initiated in March 2014 allegedly showing that
Mother "misappropriated" child support monies,
"speak(ing) to the mother's lack of credibility and
the mother's motivations for initiating the allegations
of abuse." A plan for visitation and reunification with
the children was additionally sought. On February 1, 2016,
nunc pro tunc to December 18, 2015, the trial court
determined that the juvenile court had jurisdiction over
custodial and visitation issues as previously ordered by the
trial court in 2014.
January 12, 2016, Father sought relief in the juvenile court,
again requesting post-judgment relief from the trial
court's 2014 orders, but under Rule 34 of the Rules of
Juvenile Procedure and Tennessee Code Annotated section
37-1-139. In its pre-trial conference order filed on February
22, 2016, the juvenile court, citing res judicata, dismissed
Father's request that the adjudicatory and dispositional
orders be vacated. The court found that these matters were
outside of its jurisdiction and that Father was attempting to
"re-litigate" issues already appealed and affirmed.
The juvenile court reserved the issue of visitation,
construing Father's request as a petition to modify the
no-contact order. In an order entered on October 28, 2016,
nunc pro tunc August 31, 2016, the juvenile court magistrate
denied Father's petition. The juvenile court judge
affirmed the magistrate's ruling the following November.
An appeal de novo followed in the trial court.
April 2017, Father supplemented his earlier memorandum of law
and fact and asserted alleged new evidence that the Child had
reported in February 2014 that Father had touched her vagina
because "maybe he put medicine on me." Father
further claimed that Mother, who initiated the abuse
allegations during a divorce and child custody dispute,
fraudulently obtained and misappropriated in excess of $10,
000 in childcare monies; the child support court had
concluded that Mother was a non-credible witness; and the
trial judge had engaged in misconduct. Father additionally
asserted that he had passed a psychosexual evaluation that
revealed he is a low risk to sexually abuse. He also noted
that the Court Appointed Special Advocate ("CASA")
conducted an investigation and recommended modification of
the existing no visitation order. Father argued that there
was no compelling state interest to justify a no contact
provision when there is a low or nonexistent risk of abuse.
on the petition was held on May 3, 2017. Father primarily
based his arguments on witness William Stanley, a
"licensed psychological examiner" and
"approved provider" by the Tennessee Sex Offender
Treatment Board. Mr. Stanley performed a psychosexual
evaluation of Father in October 2015 and subjected Father to
multiple tests: the Rapid Risk Assessment of Sexual Offense
Recidivism (RRASOR), Static-99, and Bays and Freeman-Longo.
According to Mr. Stanley's interpretation of the test
results, the scores indicated that Father had a low risk to
re-offend. However, Mr. Stanley's only sources of
information for Father's offense were Father's own
report and a 2011 letter from the district attorney's
office declining to prosecute Father for "lack of
credible evidence." Mr. Stanley dismissed the trial
court's finding that Father had sexually abused the Child
because of the "lower evidentiary standard for civil
court." Mr. Stanley further opined that he did not
believe Father had abused the Child, and he recommended that
Father be reunited with the children based on the testing,
his review of the "appropriate materials, " and
"just my gut feeling" that Father was "being
open and honest."
case utilized Dr. James Michael Adler, Ph.D, as an expert on
psychosexual evaluations and sexual risk assessments. Dr.
Adler co-authored the State of Tennessee's Best Practice
Guidelines for sex offender assessment and treatment and has
served on the Tennessee Sex Offender Treatment Board since
2002. Dr. Adler identified significant deficiencies in Mr.
Stanley's evaluation that failed to satisfy the
Board's best practices (i.e., those practices forming the
standard for what a court receives). In his opinion, Mr.
Stanley's evaluation was insufficient to support any
conclusions about Father's risk to reoffend.
Johnson, a CASA volunteer appointed by the juvenile court,
recommended visitation "solely" on the basis of her
conversations with Mr. Stanley. Licensed Clinical Social
Worker Nan Buturff testified that the Child's emotional
problems, though much improved, stemmed from (1) her sexual
abuse by Father and (2) the ALS diagnosis and subsequent
death of her maternal grandfather, with whom the Child had
lived for over a year. Ms. Buturff recommended against
contact between the children and Father.
31, 2017, the trial court entered the following order:
The portion of [Father]'s Petition seeking to vacate the
previous order of this Court entered on January 13, 2014 is
denied. Some of the evidence upon which [Father] relies
predates the previous trial. To the extent that he relied on
information he learned from treatment records after the
trial, but that were available to him prior to the trial in