Opinion
No. M2018-00720-COA-R10-CV No. M2018-00720-COA-R3-CV
05-08-2018
PHILIP FOXWELL BERG, Father/Respondent, v. KEIKO SHIGENO BERG, Mother/Petitioner.
On Rule 10 application from the Circuit Court of Davidson County, Tennessee No. 12D-575
RESPONSE TO RULE 10 APPLICATION
Comes now the Father/Respondent, Philip Foxwell Berg ("Father"), by and through counsel and pursuant to Tennessee Rule of Appellate Procedure 10, and files this Response to the Application for Permission for Appeal filed by the Mother/Petitioner, Keiko Shigeno Berg ("Mother"), on April 24, 2018.
I. INTRODUCTION
A review of Mother's Application reveals that, at best, Mother has inadvertently omitted material facts and misinterprets certain facts or, at worst, misleads the Court. Father will address the issues raised by Mother in turn and asks the Court to deny the Rule 10 Application. Father asks for his fees incurred in defending the Rule 10 Application.
As will be discussed in detail throughout this Response, Mother represents to the Court that (1) the Rule 35 Report was not admitted to evidence and (2) the March 13, 2018 Order states that "[i]n approximately 60 days, the Court shall set a status conference to determine whether the terms of this Order should be modified and to determine whether a final order should be set." (Rule 10 Application at p. 7) (emphasis in Application). Both of these assertions are incorrect. Of even more concern than these misstatements is a material omission made by Mother. Specifically, the main thrust of Mother's Application is that she first learned on the morning of March 13, 2018 that "she was at risk to lose all contact with her children[;]" (Rule 10 Application at p 10), however, Mother fails to apprise the Court that Father filed a Proposed Parenting Plan over a month before the final hearing was to resume advising Mother of exactly this request. These misstatements and omissions will be discussed at length in this Response.
This Brief is in response to the Mother's contention that the trial court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review by this Court. Mother's argument to support this conclusion can be distilled to four distinct arguments: (1) that as "[Mother] was given no notice that she was at risk to lose all contact with her children[,]" (Rule 10 Application at p 10.), her due process was violated based on insufficient notice; (2) that the facts did not support a finding that the children would be subject to a likelihood of substantial harm absent a temporary modification of the parties' Permanent Parenting Plan; (3) the trial court erred in suspending her rights of parents as enumerated by Tennessee Code Annotated section 36-6-101; and (4) that the trial court's March 12, 2018 Protective Order concerning the use and dissemination of Dr. Bradley Freeman's March 7, 2018 Report (the "Report") is overly broad and Mother was not allowed to prepare a proper rebuttal to the report.
II. STANDARD OF REVIEW
Unlike Rule 9 appeals, Rule 10 appeals are reserved only for extraordinary departures from the accepted and usual course of judicial proceedings. See, e.g., Jones v. Vasu, 326 S.W.3d 577, 578 (Tenn. Ct. App. 2010) (granting extraordinary appeal in a health care liability suit where the trial court denied the defendant's motion to dismiss despite the plaintiff's intentional delay in service of process which had rendered the filing of the complaint statutorily ineffective); Joiner v. Joiner, No. E2005-01619-COA-R10-CV, 2005 Tenn. App. LEXIS 673, at *8 (Tenn. Ct. App. Oct. 27, 2005) (granting extraordinary appeal where a trial judge disqualified an attorney from representing a litigant simply because the attorney had announced his candidacy for the judge's position); Pykosh v. Earps, No. M2004-01507-COA-R10-CV, 2004 Tenn. App. LEXIS 525, at *1 (Tenn. Ct. App. Aug. 17, 2004) (granting extraordinary appeal where the trial court denied a defendant's motion for a physical examination of the plaintiff, though the plaintiff had been granted the opportunity to have his own doctor testify); State ex rel. Dean v. Nelson, 169 S.W.3d 648, 649 (Tenn. Ct. App. 2004) (granting extraordinary appeal in an action to close an adult business where the court issued a temporary restraining order without five days written notice and then allowed the restraining order to remain in effect pending the trial); Korthoff v. Korthoff, No. W2001-01712-COA-R10-CV, 2001 Tenn. App. LEXIS 724, at *2 (Tenn. Ct. App. Sept. 24, 2001) (granting extraordinary appeal where the trial court, absent authority, ordered "a partial distribution of marital property prior to a final adjudication"). "It is important for appellate courts to exercise restraint in granting Rule 10 appeals. Under our Rules, the appellate courts have no authority to unilaterally interrupt a trial court's orderly disposition of a case unless the alleged error rises to the level contemplated by the high standards of Rule 10." Gilbert v. Wessels, 458 S.W.3d 895, 898 (Tenn. 2014).
In this case, there was no extraordinary departure from the accepted and usual course of judicial proceedings; the trial court adhered to established legal standards.
III. PROCEDURAL HISTORY
1. On November 7, 2013, the trial court entered a Final Decree of Divorce incorporating an agreed upon Permanent Parenting Plan in which each party received 182.5 days with each of their minor children, Ellie and Samuel. Mother was named the primary residential parent.
2. On March 28, 2016, Mother filed a Petition to Modify Parenting Plan.
Mother would subsequently amend her original Petition; however, the substance of the Petition remained the same—modification of the parties' Permanent Parenting Plan.
3. On May 19, 2016, Father filed an Answer to Mother's Petition to Modify Parenting Plan and Counter-Petition to Modify Parenting Plan, in which he requested, among other things, to be named primary residential parent and to have sole decision making for each of the parties' minor children. (See Exhibit A; Father's Counter-Petition.)
4. From the filing of Father's Counter-Petition to present, the parties engaged in intensive litigation and discovery concerning the custody of the parties' minor children. (See Exhibit B; True Copy of Rule Docket.) As can be gathered from Exhibit B the vast majority of the pleadings and orders concern custody issues.
5. On June 5, 6 and 7, 2017, the parties participated in the first three days of a final hearing on both parties' Petitions concerning modification of the Permanent Parenting Plan. The trial did not conclude during this period.
6. On September 18, 2017, the parties entered into an Agreed Order in which the children would be evaluated by Dr. Bradley Freeman, pursuant to Tennessee Rule of Civil Procedure 35. (See Exhibit C; September 18, 2017 Agreed Order.) The parties subsequently entered into an Agreed Order expanding the scope of Dr. Freeman's evaluation to include the parties and not just the children. (See Exhibit D; October 20, 2017 Agreed Order.)
7. After the entry of the Agreed Order appointing Dr. Freeman as the Rule 35 expert, the parties entered into an Agreed Order setting the final hearing for March 13, 14, 20, and 21 2018.
8. On February 9, 2018, over a month prior to the hearing in which Mother complains that she did not have proper notice, Father filed an Amended Proposed Parenting Plan with the Court in which Mother would receive no time with the children and contained the following provision:
Due to Mother's continued behavior designed to alienate the affections of the children against Father , it is in the best interests of the children that Mother have no parenting time with either child pending further orders of the Court.
It is the Court's intent that all contact between Mother and the children be suspended pending further orders of the Court.(See Exhibit E; February 9, 2018 Notice of Filing Proposed Parenting Plan) (emphasis added).
Mother is hereby enjoined and restrained from having any contact with the children whatsoever , even contact such as is outlined in the Rights of Parents section of this Parenting Plan , pending further orders of the Court.
Mother omitted inclusion of this pleading from her Rule 10 Application.
9. On March 12, 2018, the trial court issued a Protective Order along with Dr. Freeman's Rule 35 Report.
10. On March 13, 2018, Father filed a Motion to Suspend the Mother's Parenting Time the morning that the trial was to resume. That same morning, Mother filed a Motion to Continue the Trial. Both of these pleadings are attached as exhibits to Mother's Application.
11. At the beginning of the resumption of the trial on March 13, 2018, the Court heard argument on both Father's Motion to Suspend Mother's Parenting Time and Mother's Motion to Continue the Trial. Introduced into evidence at trial at that hearing was Dr. Freeman's report and other exhibits. (See Exhibit F; Transcript from March 13, 2018); (Exhibit G; Dr. Freeman Report); (Exhibit H; Other Exhibits From March 13, 2018 Hearing).
12. After considering the exhibits and arguments of counsel, the Court entered an Order both suspending Mother's parenting time and continuing the trial to allow Mother to depose Dr. Freeman and otherwise prepare a rebuttal to Dr. Freeman's report. (See Exhibit I; March 13, 2018 Order.)
IV. ANALYSIS
A. Mother's procedural due process right to notice was not violated.
1. Mother waived her objection to the hearing proceeding on March 13, 2018.
In what appears to be the crux of Mother's application, she argues that she was not given appropriate notice that her parenting time could be suspended by the trial court at the March 13, 2018 hearing. This argument is procedurally defective, as a review of the March 13, 2018 transcript reveals Mother's counsel did not object to Mr. Berg's Motion being heard on the morning of March 13, 2018 due to insufficient notice. (See Exhibit F.) As such, the argument is waived. See Tenn. R. App. P. 36(a) ("Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error."); see also Tenn. R. Evid. 103(a)(1) (requiring a timely objection as a prerequisite to a finding of error based on the trial court's admission of evidence); Butler v. Pitts, -- S.W.3d --, 2016 Tenn. App. LEXIS 10 (Tenn. Ct. App. Feb. 12, 2016) ("Appellants did not raise a particular argument before the trial court either in their pleadings or during the hearing, and thus it was waived.").
Mother certainly argues at the March 13 hearing that the final hearing should be continued as outlined by the Motion to Continue she filed the morning of March 13, 2018. Mother also argues against the substance of Father's Motion to Suspend, i.e., that Mother's parenting time should be suspended. However, she does not argue that she needed a continuance for the hearing on Father's Motion to Suspend.
Mother cannot argue that the trial court ". . . so far departed from the accepted and usual course of judicial proceedings as to require immediate review . . ." for proceeding with the hearing on March 13, 2018 when Mother did not object to the Motion being heard, and, in fact, filed and argued her own Motion, i.e., Motion to Continue, on a similar timeline to Father's Motion.
2. Mother's procedural due process right to notice was not violated.
Even if Mother did not waive her notice argument (which she did), the substance of Mother's Application—that her procedural due process rights were violated as she was not given proper notice that her parenting time could be suspended by the trial court—fails. See, e.g.,, (Rule 10 Application at p. 10) ("[Mother] was given no notice that she was at risk to lose all contact with her children."). Neither the facts nor the case law cited by Mother support this contention.
In support of her argument, Mother heavily relies on the Supreme Court's statement that: "It is imperative . . . that a party from whom custody will be removed, even temporarily, be provided with notice sufficient to meet due process requirements." (Rule 10 Application at p. 7) (quoting Keisling v. Keisling, 92 S.W.3d 374, 380 (Tenn. 2002); see also (Rule 10 Application at p. 8) (citing Keisling). Despite Mother's reliance on these snapshots from Keisling, a review of that case reveals that it contradicts Mother's argument regarding notice.
In Keisling, following the parties' divorce, the parties engaged in post-divorce proceedings in which each party filed a petition regarding parenting issues, including an allegation by the mother that the father sexually abused the children. 92 S.W.3d at 374. The mother's petition was ultimately resolved with a finding that father did not sexually molest the children. The father voluntarily dismissed his petition. After the first set of post-divorce proceedings was completed, on July 11, 2002, the mother in Keisling filed another petition to modify the father's visitation based on an allegation of sexual abuse. Approximately two weeks after the mother's petition was filed, the trial court held an emergency hearing regarding new allegations of child sexual abuse. The father filed no answer, responsive pleading, or counter-petition prior to the time that the trial commenced. At that hearing, the trial court denied the mother's petition and found that the allegation of sexual abuse was unfounded. The trial court also ordered that custody of the children be changed from the mother to the father. The mother objected, arguing that there were "no pleadings before the court requesting a change in custody." Id. at 378. In response, "the trial court stated that it based its ruling upon [the father's] 'oral petition' requesting custody. The trial court then directed counsel for [the father] to 'get our record clear and get your written petition in because you orally moved the Court and I assumed you had a written petition making its way to this file.'" Id. at p. 378. The mother ultimately sought review of the matter by the Supreme Court arguing that the "the trial court erred in transferring child custody from one parent to the other when no petition requesting a change of custody had been filed at the time of the ruling." Id. at. p. 378. As to the issue of notice, the Supreme Court agreed with the mother and explained:
At the time of the challenged ruling, the only formal pleading before the trial court was [the mother's] petition to modify visitation and child support payments. [The mother] was not served with any pleading notifying her that she could lose custody of her children as a result of the proceeding. We hold that the risk of erroneous deprivation of custody of one's children is substantial when no pleadings are filed informing the parent that a change in custody is being contemplated by the court.Id. at p. 378-79. The Supreme Court concluded by holding that the mother's "right to due process was violated because there were no pleadings giving notice that custody would be addressed at the hearing." Id. at p. 380.
After a thorough review of the record, we conclude that the issue of a change in custody from [the mother] to [the father] was not expressly or impliedly tried. [The mother's] petition alleged sexual abuse of the children by [the father]. The hearing focused upon the truth of those allegations. [The father's] counsel did make statements concerning his client's request for custody during the discussion of preliminary matters. These statements, at best, evidence an intention to file a petition, which was not done. Had such a petition been filed, [the mother] would have been on notice of [the father's] intent to try the issue of custody and the allegations concerning [the mother's] fitness as a parent. At that time, she would have had the opportunity to agree to the trial of the custody issue, or to object and request a continuance. Without such notice, [the mother] could assume that only the issues raised in her pleadings were being tried.
The application of Keisling was discussed by the Court of Appeals in Howe v. Howe, No. E2008-02580-COA-R3-CV, 2010 Tenn. App. LEXIS 57 (Tenn. Ct. App. Jan. 28, 2010). In Howe, the mother filed a complaint for divorce seeking custody of the parties' minor child. The father did not file his Answer until the first day of the parties' trial, and "the father's counsel admitted that when reviewing the pleadings, he realized that he inadvertently failed to respond to the Complaint." Id. at *2. The mother moved for a default judgment, and the trial court denied the motion, noting that the case was "hotly contested on numerous issues since early on." Id. at *3. After the trial in Howe, the trial court named father to be the primary residential parent and awarded the mother 65 days per year with the child. The mother then filed a motion for stay and to amend the parenting time, arguing that she had "no idea that the primary parenting assignment was an issue." Id. at *5. The mother alleged that she was not prepared to defend the parenting issue. The trial court denied the motion, and the mother appealed. On appeal, as relevant to these proceedings, the mother argued that she did not have notice, as required by Keisling, that custody could be changed. The Court of Appeals considered Keisling and rejected her argument:
The mother cites the Keisling case in support of her argument regarding notice, but that case is not similar, because in Keisling the Supreme Court found that there was no notice that custody could be changed, as change in custody was not expressly or impliedly tried. Keisling v. Keisling, 92 S.W.3d 374 (Tenn. 2002). In this case custody was expressly tried, and the father clearly testified that he at least wanted a joint or shared custody arrangement. This was expressed at trial and at a prior motion hearing. At some point early in the trial, the Trial Court made a statement on a relevance objection that all the evidence relating to issues regarding the child, including custody, was relevant.Id. at *7.
With the actual breadth and applicability of Keisling outlined above, Mother's argument in this case is devoid of any merit as Mother was on notice that custody would be addressed at the hearing on March 13, 2018. Specifically, Mother's own Rule 10 Application shows that Mr. Berg's Counter-Petition to Modify the Permanent Parenting Plan was filed on May 19, 2016—approximately two years prior to the March 2018 hearing. . (See Exhibit A.) In that Counter-Petition, Father asks to be named the primary residential parent with sole decision making authority. (Id.) There can be no argument that there were "no pleadings" giving notice that custody would be addressed at the final hearing on Mr. Berg's Counter-Petition.
Of particular concern is Mother's repeated argument that she ". . . was given no notice that she was at risk to lose all contact with her children" prior to the March 13, 2018 hearing. (Rule 10 Application at p. 10); see also (Id. at pp. 4, 6) ("This motion gave Ms. Berg no notice that, rather than a continuation of the trial which had begun the previous June, all of her contact with the children was now at issue."); (". . . [Father] alleged it was suddenly necessary to immediately remove [Mother's] children from all contact with her . . . ."). The heart of Mother's argument regarding notice is not that a pleading regarding custody was pending (as discussed in Keisling), but that March 13, 2018 was the first date she received notice "she was at risk to lose all contact with her children." (Id. at p. 10.) This is misleading to the Court and completely false—on February 9, 2018, over a month before the continuation of trial on March 13, 2018, Father filed a Notice of Filing Amended Proposed Parenting Plan attaching a proposed parenting plan in which Mother would receive no time with the children and containing the following provision :
Due to Mother's continued behavior designed to alienate the affections of the children against Father , it is in the best interests of the children that Mother have no parenting time with either child pending further orders of the Court.(See Exhibit B) (emphasis added).
It is the Court's intent that all contact between Mother and the children be suspended pending further orders of the Court.
Mother is hereby enjoined and restrained from having any contact with the children whatsoever , even contact such as is outlined in the Rights of Parents section of this Parenting Plan , pending further orders of the Court.
Mother filed her own Amended Proposed Parenting Plan on March 2, 2018. (Exhibit B.)
Thereafter, on March 13, 2018, the parties attended a trial in which Mother was fully aware that Father would be asking that she have no contact with the children. For Mother to suggest to this Court that she only first learned of Father's request that Mother, as she describes, ". . . lose all contact with her children . . ." on March 13, 2018 is a complete fabrication in an attempt to have this Court grant her relief.
B. The trial court did not depart from the accepted and usual course of judicial proceedings by finding that the children would be subject to a likelihood of substantial harm absent a temporary modification.
Next, Mother attacks the substance of the trial court's finding—that the children would be subject to a likelihood of substantial harm absent a temporary modification. In support of this contention, Mother argues that the information, including the Report, presented to the trial court on March 13, 2018 does not support this finding. However, curiously, Mother does not attach the Report to her Rule 10 Application for this Court's review and, in fact, filed a motion with this Court asking that the Report not be considered. The Court denied the Motion. (See Exhibit G; Motion to Exclude Report.) As the Report is quite voluminous, i.e., 60 pages, Father will not restate that report verbatim, but submits the entire report for the Court's review. Mother also raises evidentiary issues with regard to the Report's admissibility. These issues will be addressed in turn.
As a threshold matter, Father must first address a misrepresentation (as similar to her omission of Father's February 9, 2018 Parenting Plan) made to the Court by Mother through her pleadings in this Court. Specifically, on April 25, 2018, Mother filed a Motion asking that the Court not review the Report in addressing her Rule 10 Application, stating, in part: "Bradley Freeman's report has never been entered into evidence in the trial court." (Motion filed April 25, 2018 at p. 1.) This is a misrepresentation - the Report was in fact, and without objection by Mother's counsel, made an exhibit at the March 13, 2018 hearing:
THE COURT: Mr. Smith, I am going to put in the report in a sealed envelope, which will be Exhibit No. 4.Attached as Exhibit D is the entire transcript from the March 13, 2018 hearing. Attached as Exhibit E is Exhibit 5 from the March 13, 2018 hearing.
(WHEREUPON, the above-mentioned document was marked as Exhibit Number 4.)
THE COURT: We will make yours as Exhibit No. 5.
(WHEREUPON, the above-mentioned document was marked as Exhibit 5.)
MS. CLARK: I thought we weren't allowed to copy that.
THE COURT: Well, you're not. I am.
MS. CLARK: Okay
THE COURT: I'm making it part of the record. We will need a sealed envelope, also.
MR. SMITH: You will put the other documents I put in as Exhibit 4?
THE COURT: Yes, this will be 4, and it will be in a sealed envelope.
Mother only attached part of the transcript, which starts at page 44.
1. Admissibility issue related to the Report.
While not directly confronting admissibility issues related to the Report, Mother's Rule 10 Application ostensibly argues that the Report was inadmissible as it ". . . contains dozens of pages of hearsay . . . ." (Rule 10 Application at p. 6.) This potential argument fails for a variety of reasons.
First, as Mother's counsel did not object to the Report being made an exhibit at the March 13, 2018 hearing, she has waived any admissibility issues. See Tenn. R. App. P. 36(a) ("Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error."); see also Tenn. R. Evid. 103(a)(1) (requiring a timely objection as a prerequisite to a finding of error based on the trial court's admission of evidence).
Notwithstanding her waiver, Mother's argument has no merit. A cursory reading of the Tennessee Rules of Evidence reveals the flaws in Mother's conclusions. Rule 703 provides that experts may rely on inadmissible evidence, e.g., hearsay, in forming his or her opinion: "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Here, Dr. Freeman's reliance on statements made to him concerning the child at issue certainly meet this criteria and, therefore, need not be admissible under the Rules of Evidence.
There can be no dispute that Dr. Freeman is an expert as he was agreed upon by the parties. (Exhibit C.)
Moreover, the Court's expert is permitted to provide his or her report directly to the Court under Rule of Evidence 706, as recognized by the Court of Appeals in Smith v. Smith, No. M2005-01688-CO-R3-CV, 2008 Tenn. App. LEXIS 224 (Tenn. Ct. App. Apr. 9, 2008). In Smith, at the parties' request, the trial court appointed a psychologist to examine the parties' son and to report his findings and conclusion to the trial court. The psychologist filed his reports with the trial court and the parties, and trial court relied on them to set temporary parenting orders. The mother objected to the use of the reports at trial on the ground that she had not been afforded an opportunity to depose the expert. The trial court disagreed and relied on the report. The mother appealed and, as relevant to this Motion, argued that the trial court erred in admitting the reports over her objections because Rule 706 reports can purported only be admitted and considered if the parties have an opportunity either to depose the expert or subpoena the expert to trial.
The Court of Appeals disagreed, finding the report to be admissible despite the expert not testifying at trial or via deposition: "The plain language of Tenn. R. Evid. 706 does not state that the only way that a court-appointed expert's opinions may be received into evidence is to call the court-appointed expert as a witness at trial. In this regard, Tenn. R. Evid. 706(a) states that "the [court-appointed] witness's deposition may be taken by any party" and that the "witness shall be subject to examination by each party." It does not say that a court-appointed expert must be deposed or must be cross-examined at trial before the court may consider the expert's opinions."
The Report was properly admitted under the confines of Rule 706(a) and Smith.
2. Likelihood of substantial harm absent modification of Permanent Parenting Plan.
As to the substance of the March 13, 2018 hearing, the trial court found that absent a temporary modification the children would be subject to a likelihood of substantial harm. (Exhibit F. ) Accordingly, the trial court modified the parties' Parenting Plan.
Here, the basis of the trial court's finding of substantial harm is formed through the findings made by the agreed upon Rule 35 expert—Vanderbilt psychiatrist Dr. Bradley Freeman. (Exhibit G. ) Dr. Freeman's Report consists of 60 pages and is based on an intensive evaluation considering 20 interviews, multiple tests, and a review of relevant health care records. (Id.) A totality of the information reviewed by Dr. Freeman can be found on pages two through four of his report. (Id. at pp. 2-4.) Father would note that Mother was tremendously involved in the process as she was reviewed on two occasions and provided records, which were described by Dr. Freeman as follows: "Ms. Berg provided three binders of information with regard to the children's activities, health care, and education. The binders contained copious amounts [of] material, messages, and pictures. Each binder was indexed and tabbed in an overly organized fashion. Many of the pages were highlighted and had additional handwriting on them to explain the contents." (Id. at p. 40.) Mother was very involved in the process (which was agreed upon) and her complaints appear to stem from the fact that the conclusions were not favorable to her.
After the foregoing intensive analysis was conducted by Dr. Freeman, he found, inter alia, that that Mother meets criteria for an anxiety disorder, meets the criteria for parent relational conflict, is at an increased risk for depression, and must continue to engage in mental health treatment. (Id. at p. 50-51.) As to Father, he found that he was a safe parent for his children, was engaged in a healthy marriage with his current wife (but that they should engage in couples counseling due to the stress of the contentious custody matter), and did not have a major psychiatric diagnosis. (Id. at p. 51-52.) Dr. Freeman noted that Father needed to adjust his parenting style and become less rigid and continue to work in individual therapy. (Id. at p. 52.) Dr. Freeman also found that ". . . the evidence supports Ms. Berg engaging in alienating Ellie and Samuel from their father . . ." (Exhibit G at p. 56.) Dr. Freeman recommend that Ellie should be separated from Mother and that it was "the key to rebuilding the relationship between Ellie and her father." (Id. at p. 57.)
Father will submit the entirety of the Report to the Court for its consideration and would state that the findings of the Report and the facts supporting those findings certainly buttress the trial court's decision on March 13, 2018. However, Father would point out one particular string of incidents for the Court's consideration.
On February 25, 2018, Dr. Freeman interviewed a Ms. Tiffany Davis, who identified herself as a counselor for the parties' children. (Id. at p. 30.) Ms. Davis reported that she first saw Ellie on October 15, 2013 and last saw Ellie in August of 2017. (Id.) Despite Ms. Davis seeing Ellie for almost four years, nowhere in her testimony does she speak to Ellie cutting herself or committing self-harm. (Id.)
Mr. Ronald Shuff, who was also interviewed by Dr. Freeman, stated that "[Mother] has told her she can't help Ellie and that someone else has to report to DCS. She noted nothing can be done unless she threatens to hurt herself. This goes back to June of '16. She tells her there is nothing she can do to help her and 'I can't report anything to DCS but they won't do it unless you are telling them you are going to hurt yourself.'" (Id. at p. 9.) Mr. Shuff indicated that Mother had advised her daughter of the foregoing on more than one occasion. In other words, beginning in June of 2016—while the custody matter was being hotly litigated—Mother recommended to her daughter that if she wanted to be removed from Father's custody, she would need to threaten to "hurt herself."
Mr. Shuff also reported, among other things, that Mother would read court documents concerning the ongoing custody case with Ellie and that Ellie was "defending her Father" from Mother's demeaning comments about him until Mother "went through court documents showing what her father wrote about her." (Id. at p. 9.) With this background in place, i.e., that Ellie never suggested that she had cut herself during four years of counseling with Ms. Davis and Mother suggesting that Ellie threaten to hurt herself, on September 1, 2017, Ellie was admitted to Vanderbilt Psychiatric due to suicidal ideations. (Id. at p. 42.)
Again, the foregoing only represents a small part of the Report, but reveals the severity of the situation presented to the trial court on March 13, 2018. The remainder of the report also shows Mother's troubling behavior and supports the Court's March 13, 2018 ruling.
C. The Court properly found that Mother should not have contact with the children.
For the same reasons as outlined in the Report and briefly set out above, the trial court did depart from the accepted and usual course of judicial proceedings in prohibiting Mother from having contact with the children. To this end, Mother ostensibly argues that all parents are "entitled" to the right enumerated for parents pursuant to Tennessee Code Annotated section 36-6-101. However, a review of the statute, reveals Mothers interpretation to be incorrect as the statute, directly after listing the rights, states: "Any of the foregoing rights may be denied in whole or in part to one or both parents by the court upon a showing that such denial is in the best interests of the child." Tenn. Code Ann. § 36-6-101(a)(3)(C). As the trial court found the terms of the March 13, 2018 Order to be in the best interest of the children, it had the authority to remove the "rights of parents" from Mother.
D. The Protective Order is not overly broad and she is not prohibited from preparing to properly rebut the Report.
Mother's final complaint is that the March 12, 2018 Protective Order is overly broad and that she "should be allowed to continue putting on her evidence, including preparing a proper rebuttal to the report submitted by Bradly Freeman." (Rule 10 Application at p. 10.) The trial court has not prevented her from "putting on her evidence" and the Protective Order is appropriate.
In support of her contention that the Court has "prevented her from putting on her evidence," Mother, again, misrepresents a fact to the Court in her Rule 10 Application. On this occasion, Mother complains that she "has no assurance she will even have a hearing to determine whether she will have access to her children . . ." as the March 13, 2018 Order provides that "[i]n approximately 60 days, the Court shall set a status conference to determine whether the terms of this Order should be modified and to determine whether a final order should be set." (Rule 10 Application at p. 7) (emphasis in Motion). Mother suggests to this Court that the trial court entered an order in which it would potentially convert its March 13, 2018 Order to a "final order." This is misleading, as Mother misquotes the March 13, 2018 Order. The Order actually states: "In approximately 60 days, the Court shall set and conduct a status conference to determine whether the terms of this Order should be modified and to determine whether a final hearing should be set." (Exhibit F.) (emphasis added). In other words, in 60 days, the Court will conduct a hearing to determine if the Order should be modified and whether the matter should be set for a final hearing. This was also made clear by the trial court at the actual hearing:
MS. CLARK: And, Your Honor, at the conclusion of that 60 days?(Exhibit F at p. 43.) For Mother to suggest to this Court otherwise is simply incorrect.
THE COURT: I'm not saying there will be contact. I'm saying we will take a look at it.
MS. CLARK: So we come back in in 60 days?
THE COURT: Come back in at 60 days. We will probably be looking to set the case at some point in the future . . . .
Moreover, as made readily evident by the trial court on March 13, 2018, the very reason for the trial court granting Mother's Motion to Continue the trial was for her to be able to potentially rebut the Report. (Id.) The very purpose of the trial court's continuance was to allow Mother to depose Dr. Freeman and gather evidence she deemed necessary. (Id.)
Finally, although vague in her basis, Mother takes issue with the Court's March 12, 2018 Protective Order which was issued along with the Report. (Exhibit A to Mother's Application.) Father is unsure of the reasoning behind this complaint. In short, the subject Protective Order, due to the sensitivity of the information contained in the Report, provides that the Report shall be provided to counsel for each party but that the contents shall not be disseminated to any other person verbally or in writing without a Court Order. The Order goes on to say that the Report shall not be reviewed by anyone except for the attorneys, the parties, any expert, and staff of the attorneys. Copies shall only be provided to experts who shall be subject to the Protective Order. The Report shall not be made an exhibit to any future discovery or read into evidence at a deposition or made an exhibit to a Court proceeding without prior notice to the parties of an intent to do so and an order allowing use of the Report. Finally, the Protective Order may be modified by motion for just cause.
The foregoing represents a brief recitation of the terms of the Protective Order. Due to the information contained in the Report, the Protective Order is appropriate and within the trial court's ability to issue. Mother can share the Report with any experts retained by her and, upon Motion, may share the Report as she deems necessary. Mother suggests that the Protective Order should be set aside and that she should be able to share the contents of the Report at her discretion. This would be inappropriate.
V. CONCLUSION
Based on the foregoing, Mother's Application should be dismissed and Father should be awarded his attorneys' fees and costs incurred in defending this matter pursuant to Tennessee Code Annotated section 27-1-122 and 36-5-103(c).
Respectfully submitted,
/s/_________
Gregory D. Smith (Sup. Ct. No. 11684)
Brenton H. Lankford (Sup. Ct. No. 30223)
STITES & HARBISON PLLC
401 Commerce Street, Suite 800
Nashville, TN 37219-2490
Telephone: (615) 782-2200
Attorneys for Father/Respondent
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served via the following method(s) upon the individual(s) listed below on this 8 day of May, 2018:
Cynthia A. Cheatham, Esq.
4800 Charlotte Avenue
Nashville, TN 37209
ccheathamlaw@gmail.com
Attorneys for Defendant, Ms. Berg
(×) Electronic Mail
(×) U.S. Mail
( ) Facsimile
( ) Hand-delivery
/s/_________
Gregory D. Smith/Brenton H. Lankford
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