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In re Emmalee O.

Court of Appeals of Tennessee, Knoxville

June 13, 2018

In Re EMMALEE O., et al.

          Session April 19, 2018

          Appeal from the Circuit Court for Knox County No. 126793 Gregory S. McMillan, Judge

         This 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 decision.

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

         Affirmed; Case Remanded

          Alan 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 Children's Services.

          Patti Jane Lay, Knoxville, Tennessee, for the appellee, Trisha O.

          John W. McClarty, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and Thomas R. Frierson, II, JJ., joined.

          OPINION

          JOHN W. MCCLARTY, JUDGE

         I. BACKGROUND

         Alan O. ("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.

         Problems 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 children.

         In 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. . . .

         On May 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.

          In 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.[1] 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.

         Following 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."[2] 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.

         Father 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 follows:

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.

         In our 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. 330 (2015).

         In 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.

         On 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.

         In 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.

         Trial 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."

         DCS' 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.

         Virginia 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.

         On May 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 ...

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