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In re M.M.

Court of Appeals of Tennessee, Knoxville

June 11, 2019

In re M.M. [1]

          Session May 20, 2019

          Appeal from the Juvenile Court for Hawkins County No. HJ-14-0312 J. Todd Ross, Judge

         In this child-custody dispute, father filed a petition for legitimation and to establish a parenting plan. Father was subsequently determined to be the biological father of the minor child M.K. After mother took the child to excessive medical visits, made unsubstantiated claims that the child suffers from ailments and had her treated for the same, and accused father of physically and sexually abusing the child, the trial court ordered mother to undergo a mental-health evaluation. Mother was subsequently diagnosed with Factitious Disorder Imposed on Another, formerly known as Munchausen Syndrome by Proxy. After a bench trial, the court held that it is in the child's best interest for father to be designated the primary residential parent of M.K. Mother's parenting time was limited to eleven hours of supervised visitation a week. Mother appeals. We affirm.

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

          Douglas R. Beier, Morristown, Tennessee, for the appellant, W.M.

          Michelle G. Green, Rogersville, Tennessee, Guardian ad Litem.

          A. K., Johnson City, Tennessee, appellee, Pro Se.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which D. Michael Swiney, C.J. and Thomas R. Frierson, II, J., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         I.

         Mother and father first met in Oklahoma. Mother became pregnant with the parties' only child and subsequently moved to Tennessee to live with her mother. Father followed mother to Tennessee. Father is a military veteran. He suffers from physical ailments, PTSD, and Tourette's syndrome. He has a VA disability rating as a result of his conditions. Father is presently unemployed, but attends classes at East Tennessee State University and obtains income from his GI Bill and disability status.

         On January 7, 2014, M.K. was born. On April 3, 2014, father filed an action to legitimate and establish a parenting plan. Mother initially denied paternity, however a DNA test confirmed that father was the biological father. Subsequently, a "Memo of Understanding" was attached to an "Agreed Order Establishing Paternity and Setting Temporary Visitation Schedule." Therein, father was granted temporary visitation with the child under mother's supervision.

         On January 5, 2016, father filed a motion for a hearing due to mother's non-compliance with the temporary parenting plan. He also filed a complaint for contempt alleging that mother refused to allow father his two hours of parenting time and that she took the child out of state without notice. On January 11, 2016, the court entered an order dismissing the contempt complaint, ordered that father be permitted his parenting time, and ordered the parties to attend mediation. The subsequent mediation report indicates that the parties were unable to resolve their dispute.

         On February 5, 2016, mother filed a motion demanding father undergo a mental evaluation, because father "has displayed disturbing behavior as well as made disturbing statements in [mother's] presence, as well as that of the child. [Mother] is extremely concerned for their child's safety and wellbeing while in [f]ather's care." At the bottom of the motion is handwritten by the court: "motion for mental evaluation denied. Both parents to undergo parental assessment and parenting classes."

         On February 5, 2016 a hearing was held; on April 4, 2016, the court entered its order. The court suspended father's temporary visits until after the next court date and after the parental assessment has been completed. On April 4, 2016, the court also entered its order from the aforementioned subsequent court date, which occurred on March 4, 2016; therein, the court held that father is entitled to supervised visitation.

         On May 25, 2016, father filed another motion and a proposed temporary parenting plan. Mediation was subsequently attended, and the parties agreed to a temporary parenting plan until May 2017. On December 19, 2016, an agreed order incorporating the mediation agreement was entered. On February 15, 2017, father filed a motion to suspend the December 19, 2016 order and requested a permanent parenting plan due to mother's refusal to comply with the temporary parenting schedule. Father also filed a verified petition for criminal contempt alleging twenty-three counts.

         Mother then filed a motion to suspend the visitation order. Therein, she again alleged that father has engaged in concerning conduct. She alleged that the minor child has a ketchup allergy, and father continues to feed the child whatever the child desires. Mother alleged father does not have a concern for the child's safety and that he continues to ignore M.K.'s alleged food allergies.[2] She further alleged that father has inappropriately touched the child's private parts. Mother stated that there is currently an open case with DCS, and that she is concerned for the child's well-being and safety. Mother also answered father's petition for criminal contempt.

         On April 17, 2017, an order was entered following a March 10, 2017 hearing. The order modified father's visitation and granted him unsupervised parenting time. It held both father's petition for criminal contempt and mother's motion to suspend visitation in abeyance.

         On June 2, 2017, mother filed a motion to suspend father's visitation alleging that father had left marks and bruises on M.K. She alleged that father gave the child food she is allergic to and that it caused the child to vomit. She further alleged that she had to take the child to the emergency room due to the child's crying and bruises on her body. She also included several comments intimating that father had sexually abused the child.

         On June 2, 2017, the court appointed a Guardian ad Litem and ordered mother to submit to a mental-health evaluation. It was suspected that mother may suffer from Munchausen Syndrome by Proxy.[3] DCS was ordered to investigate. On July 26, 2017, a DCS case manager filed a report indicating that there was no suspicious bruising on the child at any of the interviews; it was recommended that father's parenting time with the child increase.

         On July 28, 2017, father filed a second verified petition for criminal contempt. On September 13, 2017, the court entered an order granting father custody of the child, changing the child's surname to father's surname, and ordering mother to submit to a full Munchausen evaluation from Dr. Diana McCoy, Ph.D., A.B.A.P., at mother's expense. Dr. McCoy is a clinical psychologist and board certified in assessment psychology. Mother's visitation was limited to only therapeutic visitation through a contracted supervising agency. Mother did not get the ordered evaluation for several months.

         Following the forensic evaluation by Dr. McCoy, an order entered May 10, 2018 directed that Dr. McCoy's report was to be distributed to the parties. The detailed report concluded that mother suffers from Factitious Disorder Imposed on Another. On May 30, 2018, the court ordered that "[n]o one may disseminate (make public) any part of the report by Dr. McCoy. Dr. McCoy's report shall remain confidential to these court proceedings."

         The Guardian ad Litem then filed a "Motion Seeking Approval of Funds for Expert Witness, and Forensic Evaluation of Case, Ex-parte Motion (Filed under Seal)." Therein the GAL alleged that Dr. McCoy's testimony as an expert witness was necessary to represent the child's best ...


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