In Re M.M.

06/11/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 20, 2019 Session

IN RE M.M.1

Appeal from the Juvenile Court for Hawkins County

No. HJ-14-0312 J. Todd Ross, Judge

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No. E2018-01515-COA-R3-JV

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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

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.

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.

1

On September 13, 2017, the trial court entered an order holding that it is in the child’s best interest to have

her surname changed to match father’s surname. The child’s present initials are therefore legally M.K. However, the

style of the case, as it appears before this Court, still has the child’s former surname, which resulted in the initials

M.M. in the case style. We use the minor child’s legal initials, i.e., M.K.

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OPINION

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

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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

2

Allergy testing performed on March 27, 2018 concluded that the child does not have food

allergies.

3

Munchausen Syndrome by Proxy is a synonym for what is now known as Factitious Disorder

Imposed on Another. Its cardinal characteristic is the production or feigning of physical or psychological

symptoms in another person, usually a child or adult under the care of the person with the disorder. See,

https://my.clevelandclinic.org/health/diseases/9834-factitious-disorder-imposed-on-another-fdia. The

diagnostic process to identify this disorder is known as a Munchausen evaluation. We will refer to the

mental-health disorder by its modern nomenclature, i.e., Factitious Disorder Imposed on Another.

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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 interests. On June 20, 2018 the court entered an order

approving the request.

On July 27, 2018 a hearing was held to establish a permanent parenting plan. At

the hearing, Dr. McCoy, the doctor who performed the evaluation of mother, got the trial

time wrong and was not present when it was ready to begin. Mother’s counsel, the GAL,

and father (appearing pro se) discussed how best to proceed. Mother’s counsel agreed to

stipulate to the doctor’s report, except for the conclusions made by the doctor regarding

custody. The judge assured mother’s counsel that he would not consider Dr. McCoy’s

conclusions as to custody, but only the information contained in the report regarding

mother’s mental-health diagnosis. Later in the hearing, mother’s counsel began to dispute

the report’s findings and was prevented from doing so by the court in accordance with the

prior stipulation.

On August 14, 2018, the court entered an order making its findings of fact,

pursuant to Tenn. Code Ann. § 36-6-106. It also entered a permanent parenting plan

placing primary custody of the child with father and limiting mother to supervised

visitation. On August 21, 2018, mother filed her notice of appeal.

II.

Mother raises the following issues:

Whether the ex parte communications of the guardian ad

litem with the court and the court’s orders granting the ex

parte motions violate mother’s constitutional rights, due

process, and fundamental fairness.

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Whether the trial court abused its discretion in designating

father as primary parental custodian and in restricting

mother’s parenting time to one day each weekend for eleven

hours under supervision.

III.

In this bench trial, our review is de novo upon the record, accompanied by a

presumption of correctness of the findings of fact of the trial court, unless the

preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60

S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law are subject to a de

novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County

Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

The details of custody and visitation with children are peculiarly within the broad

discretion of the trial judge. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). Under

the abuse of discretion standard, a trial court's ruling “will be upheld so long as

reasonable minds can disagree as to propriety of the decision made.” Id. (citing State v.

Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Gilliland, 22 S.W.3d 266, 273 (Tenn.

2000)). A trial court abuses its discretion only when it “applie[s] an incorrect legal

standard, or reache[s] a decision which is against logic or reasoning that cause[s] an

injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).

The abuse of discretion standard does not permit the appellate court to substitute its

judgment for that of the trial court. Eldridge, 42 S.W.3d at 85.

IV.

A.

As noted infra, mother was ordered to undergo a mental-health evaluation by Dr.

McCoy at mother’s expense; the resulting report states that mother suffers from

Factitious Disorder Imposed on Another. An order entered by the court, on May 30,

2018, following a May 18, 2018 hearing, states, in pertinent part:

The Father shall be given a copy of the Report filed by Dr.

McCoy today.

No one may disseminate (make public) any part of the report

by Dr. McCoy. Dr. McCoy’s report shall remain confidential

to these court proceedings.

[Mother’s attorney] is ordered to notify the [GAL] no later

than Friday, May 25, 2018, whether he will stipulate to the

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report or instead require the live testimony of Dr. McCoy.

Whichever party requires Dr. McCoy’s testimony shall pay

for Dr. McCoy. The Court may further allocate that expense

for Dr. McCoy’s testimony at the hearing.

On June 19, 2018, the Guardian ad Litem filed a motion seeking approval for

funds for Dr. McCoy to testify as an expert witness and perform a forensic evaluation of

the case. The GAL stated in the motion that “[m]other has declined to pay for the expert’s

testimony, travel[,] and trial preparation,” however, mother’s attorney “has expressed that

he reserves the right to ‘dispute, contradict and object to irrelevant and improper

information and conclusions’ contained in the report.” Accordingly, the GAL sought

approval from the court to obtain funds for Dr. McCoy to testify at the hearing.

The GAL’s motion was filed pursuant to Tenn. Sup. Ct. R. 13 Sec. 4, which states,

in pertinent part:

Section 4. Payment of expenses incident to representation.

(a)(1) Appointed counsel, experts, and investigators may be

reimbursed for certain necessary expenses directly related to

the representation of indigent parties.

* * *

(b) Expenses not listed in section 4(a), including travel

outside the state, will be reimbursed only if prior

authorization is obtained from the court in which the

representation is rendered and prior approval is obtained from

the director.

(1) Authorization of expense shall be sought by

motion to the court.

(2) The motion shall include both an itemized

statement of the estimated or anticipated

costs and specific factual allegations

demonstrating that the expenses are directly

related to and necessary for the effective

representation of the indigent party.

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(3) The court shall enter an order that evidences

the action taken on the motion. If the motion

is granted, the order shall either recite the

specific facts demonstrating that the

expenses are directly related to and

necessary for the effective representation of

the indigent party or incorporate by

reference and attach the defense motion that

includes the specific facts demonstrating

that finding.

(4) The order and any attachments shall be

submitted to the director for prior approval

before any expenses are incurred.

* * *

The GAL’s motion included the relevant information mandated by the above quoted

Rule. She also included an affidavit from Dr. McCoy wherein the doctor stated her

credentials, identified herself as the individual who performed the evaluation on mother

and produced a corresponding report with recommendations, and stated her anticipated

costs for reviewing the file and testifying as an expert witness. On June 20, 2018, the

court entered an order approving the requested funds holding that an expert witness’

services are necessary for effective representation of the child.

On appeal, mother argues that the court’s findings in its resulting order are “based

on inadmissible and hearsay evidence, allegations and ‘facts’ not proven at trial.” Mother

complains that she was unaware of the motion and order “until the [t]echnical [r]ecord

was filed in this Court.” Mother alleges that this is cause for a new trial. We disagree.

The GAL engaged in the above prescribed procedure for the permissible purpose

of obtaining funds for the expert witness. The court’s May 30, 2018 order gave mother

the opportunity to stipulate to the expert’s findings. She refused and reserved the rights to

dispute, object, and contradict the report’s findings. She also declined to pay for the

expert witness to appear at the hearing. Upon mother’s refusal to stipulate to the report

and expression of her intent, the GAL sought the court’s approval for funds to have Dr.

McCoy testify in defense of her report. The GAL’s motion presented “specific factual

allegations,” as demanded by the Rule. The trial court entered an order “recit[ing]

specific facts demonstrating that the expenses are directly related to and necessary” for

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effective representation. Mother’s allegation that the motion filed by the GAL to obtain

the necessary funds somehow presented the court with “secret evidence” is unreasonable.

As argued by the GAL on appeal, the motion was not substantive in nature and was

instead an administrative filing to secure payment for the expert in order to ensure the

effective representation of the minor child. The resulting order was necessary to

effectuate the request. Additionally, any effort by the GAL to file the motion under seal

was done in accordance with the court’s May 30, 2018 order requiring that the report and

information contained therein remain confidential.

Mother’s argument that this process was “unethical and improper” and provided

the court with “secret evidence” is without merit.

B.

Mother also argues on appeal that the GAL’s post-judgment motion to certify the

matter as extended and complex, pursuant to Tenn. Sup. Ct. R. 13 Sec. 2(e), violated

mother’s “constitutional rights, due process and fundamental fairness.” The GAL’s

motion included specific factual allegations demonstrating that the case was complex and

extended. The court entered an order that evinced the action taken on the motion, and

recited specific facts supporting its finding. See, Tenn. Sup. Ct. R. 13 Sec. 2. Again, as

argued by the GAL on appeal, the motion was not substantive in nature and was purely

an administrative filing to secure payment.

The motion and resulting order proceeded in accordance with the relevant Rule.

Mother’s argument on this issue is also without merit.

V.

Mother next argues that the trial court abused its discretion in designating father as

primary residential parent and in limiting mother’s parental time to one eleven hour

supervised period each week. She argues that the trial court

[i]mproperly weighed, or failed to weigh the Tennessee Code

Annotated section 36-6-106(a) factors in designating Father

as primary residential parent. The Order shows the [c]ourt

considered factors in making the custody and visitation

determination, but the [c]ourt’s factors 1-10 do not track the

statutory factors of the current version of T.C.A. 36-6-

106(a)…

Failure to apply the proper version of Tenn. Code Ann. § 36-6-106 in a child custody

matter has been addressed by the Supreme Court.

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In C.W.H. v. L.A.S., 538 S.W.3d 488, 497–98 (Tenn. 2017), the trial court had

held that a material change in circumstance existed warranting modification of the

parenting plan in order to designate father the primary residential parent. Mother

appealed; this Court vacated and remanded. In reversing the trial court, this Court

concluded that the juvenile court misapplied Tenn. Code Ann. § 36-6-106 by consulting

the newer version of the statute, rather than its predecessor. The Supreme Court

considered whether the prior version of the statute should have governed the juvenile

court’s analysis. In so doing, it stated that

[g]enerally[,] statutes are presumed to operate

prospectively and not retroactively. Woods v.

TRW, Inc., 557 S.W.2d 274, 275 (Tenn.

1977); Cates v. T.I.M.E., DC, Inc., 513 S.W.2d

508, 510 (Tenn. 1974). An exception exists,

however, for statutes which are remedial or

procedural in nature. Such statutes apply

retrospectively, not only to causes of action

arising before such acts become law, but also to

all suits pending when the legislation takes

effect, unless the legislature indicates a contrary

intention or immediate application would

produce an unjust result. Saylors v. Riggsbee,

544 S.W.2d 609, 610 (Tenn. 1976).

Kee v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn. 1993). “The

usual test of the ‘substantive’ or ‘procedural’ character of a

statute for this purpose is to determine whether or not

application of the new or amended law would disturb a vested

right or contractual obligation.” Saylors, 544 S.W.2d at 610

(citations omitted). This Court further stated that “procedure”

is defined as:

[T]he mode or proceeding by which a legal

right is enforced, as distinguished from the law

which gives or defines the right, and which by

means of the proceeding, the court is to

administer—the machinery, as distinguished

from its product; ... including pleading, process,

evidence, and practice.... Practice [is] the form

... for the enforcement of rights or the redress of

wrongs, as distinguished from the substantive

law which gives the right or denounces the

wrong....

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Id. (quoting Jones v. Garrett, 192 Kan. 109, 386 P.2d 194,

198-99 (1963)) (alterations in original). The statute at issue in

this case created no rights and imposed no liabilities. See,

e.g., Saylors, 544 S.W.2d at 610. It merely governed the

mechanism by which a trial court should conduct a best

interest analysis. As such, the statute is procedural in nature,

and the version in effect at the time of the juvenile court’s

2015 order should have been applied.

C.W.H. v. L.A.S., 538 S.W.3d 488, 497–98 (Tenn. 2017).

In the present matter, it is unclear which version of Tenn. Code Ann. § 36-6-106

the trial court used when making its child-custody determination, because the court’s

citation is incomplete and its listing of factors is, at times, unspecific. However, if the

court erred by applying an incorrect version of the statute, we hold that its error is not

outcome-determinative and therefore harmless, because the court sufficiently considered

factors that are enumerated in the version in effect at the time of the court’s order; the

court enumerated sufficient factual findings to support a conclusion that its holding is in

the best interest of the child. See, C.W.H. v. L.A.S., 538 S.W.3d at 498 (holding that the

error was harmless because the ‘conclusion would be the same under either version of the

statute.’)

In its order, the trial court specifically found that

[b]oth parents have displayed love, affection, and emotional

ties to the minor child.

* * *

…Father is better suited to provide the child with appropriate

food, clothing, medical care, education, and other necessary

care.

…The child has lived in a stable, satisfactory environment,

with the Father…

* * *

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The court finds by clear and convincing evidence that while

in the care of the [m]other, the minor child suffered emotional

and medical neglect related to the [m]other’s diagnosis of

Factitious Disorder by Proxy. To date, the [m]other has

provided no evidence of treatment for said disorder and the

[c]ourt therefore finds that the child remains in threat of harm

[if] allowed to be with the [m]other in an unsupervised

manner.

* * *

The court further determined that mother has “disrupt[ed] the relationship between the

minor child and the [f]ather.”

We hold that the evidence presented at trial does not preponderate against the trial

court’s factual findings and that the court did not abuse its discretion in designating father

as primary residential parent and by limiting mother to supervised visitation eleven hours

a week. Most notably, the evidence does not preponderate against the court’s finding that

mother’s mental-health condition places the minor child in persistent danger.

Accordingly, we affirm.

VI.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the

appellant, W.M. Case remanded for enforcement of the trial court’s judgment and

collection of costs assessed below.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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