In Re Emmalee O. ( 2018 )

06/13/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 19, 2018 Session
IN RE EMMALEE O., ET AL.
Appeal from the Circuit Court for Knox County
No. 126793 Gregory S. McMillan, Judge
__________________________________
No. E2017-01605-COA-R3-JV
___________________________________
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
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and THOMAS R. FRIERSON, II, JJ., joined.
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.
OPINION
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.
-2-
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
1
The order from the juvenile court is not included in the record before us.
2
The dispositional order from the trial court is absent from the record.
-3-
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.
-4-
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.”
-5-
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 2014, those
issues are not newly discovered evidence and those issues are
res judicata.
The evidence that [Father] asserts is newly discovered
consists of a single statement made by Emmalee shortly after
the 2014 de novo trial was concluded. In a discussion with
her therapist, Emmalee asked her therapist “Why did he do
that?” [The child’s remark was in reference to why her father
had touched her inappropriately]. The child’s response to her
own question was, “Maybe he put medicine on me.” The
child’s statement does not exonerate [Father]. The child
searching for an explanation of the acts previously described
by her as being done by [Father] to her and positing a
conditional reason is not a basis for ignoring that the Court
previously found [Father]’s medication defense to be without
merit. There is no basis in law or fact to vacate the Court’s
previous Order.
-6-
[Father] alleges that there has been a change in circumstances
such that the Order should be modified. The circumstances
that he alleges support modification are as follows:
1) Father was evaluated by William E. Stanley, a Licensed
Senior Psychological Examiner and Tennessee Sex Offender
Treatment Board Approved Provider. Mr. Stanley concluded
that [Father] was a low risk to offend/re-offend. Mr. Stanley’s
evaluation is unreliable and not credited by the Court for
several reasons. Mr. Stanley discounted the finding of the
Juvenile Court that [Father] had sexually abused his daughter,
the finding by this Court after a trial de novo that [Father]
sexually abused his daughter, and gave no credence to the
appellate review upholding the Court’s findings, due to the
findings having been made using the “civil burden of proof.”
One of the evaluation tests relied upon by Mr. Stanley assigns
a “value” to convictions. Due to Mr. Stanley’s failure to
assign a value for a finding that abuse had occurred, the test
cannot be relied upon.
Dr. Michael Adler, the expert witness for the Department of
Children’s Services (DCS) testified that there were tests
available that did not rely on criminal convictions and could
assess risk using civil findings of abuse. Furthermore, Dr.
Adler testified that one of the tests used by Mr. Stanley had
not been empirically evaluated and was considered outdated.
Dr. Adler testified that the Tennessee Sex Offender Treatment
Board recommends tests other than those used by Mr. Stanley
with [Father]. In addition to using different evaluation tests,
Dr. Adler indicated that objective testing [to measure
physiological responses] should be used to evaluate [Father].
Mr. Stanley’s report noted that [Father] failed to answer
questions about his sexual activities and use of pornography,
topics that are required to be included in an evaluation. Dr.
Adler testified that without that information and complete
candor on [Father]’s part, the evaluation was not complete
and could not be relied upon.
Dr. Adler testified that the risk of re-offense measured by the
tests utilized by Mr. Stanley measures the percentage of
offenders who are rearrested, not the number of offenders
who actually reoffend. Dr. Adler indicated that the rate of re-
offense is Forty-two percent higher than the rate of arrest. Dr.
Adler also opined that, while it was possible to engage in sex
-7-
offender counseling with someone like [Father] who denies
the offense, it will be difficult. Dr. Adler also had concerns
about [Father]’s amenability to treatment as he had not
observed in Mr. Stanley’s work product an indication that
[Father] had been “honest and open.” Dr. Adler noted that
[Father] refused to answer normative questions, didn’t
articulate a plan on how to address with his daughter [in the
event of reunification] the fact that his daughter “said” that he
did touch her repeatedly in a manner that has [been] found to
be inappropriate. Dr. Adler testified that [Father] doesn’t see
his offending behaviors as a problem. [Father] doesn’t see his
actions as a boundary issue.
2. [Father] again asserts that the Court should take into
consideration the polygraph examination he underwent. That
issue is res judicata. [Father] also asserts that the Court
should rely upon the decision by the Knox County District
Attorney General’s decision not to proceed with prosecution
of him. This factor was also considered by Mr. Stanley as
significant. The decision of the Attorney General is not new
information and is of no[] evidentiary significance as to
whether the “ . . . threat to the child’s safety no longer
exists[,]” Tenn. Code Ann. § 37-1-167 or that “ . . . there is
no reasonable likelihood that such abuse will recur.” Tenn.
Code Ann. § 36-6-301.
3. [Father] relies on the Court Appointed Special Advocate’s
recommendation as a change in circumstances. The advocate
testified that [Father]’s case was her fourth assignment and
that she has limited experience with sexual abuse cases and
no specific training or expertise in sexual abuse issues.
Without elaboration, the volunteer did testify that, in her past
employment, she had opportunities to conduct “clearance
interviews” with Department of Energy employees who had
“issues like this.”
4. [Father] asserts that the children are suffering irreparable
harm by being separated from him. He points to research that
shows children separated from their fathers are much more
likely to commit suicide, become addicted to drugs, and run
away from home. Nan Buturff, Emmalee’s therapist, testified
that, as a general proposition, those statistics were accurate.
However, she testified that children who have suffered sexual
-8-
abuse also share these increased risks. However, the risk of
occurrence was greatly decreased with treatment, no matter
the cause of the trauma. Ms. Buturff further opined that
reintroducing [Father] in the children’s lives was a greater
risk to their well-being than his absence was.
Ms. Buturff testified that Emmalee’s issues have improved
since entering into therapy in 2011. With regard to recent
issues, Ms. Buturff opined that Emmalee’s increased anxiety
and acting out were related to her grandfather’s health issues
as he played [an] important part in her life. Father did not
establish the cause and effect relationship he asserted existed.
DCS argues that the appropriate standard the Court should
use to determine whether to modify the existing order is
whether [Father] can show, by clear and convincing evidence,
that the “threat to the child’s safety no longer exists.” Tenn.
Code Ann. § 37-1-167. The statute refers to a court having to
make that finding before the child is returned to the “care” of
a parent found to have sexually abused a child. [Father] does
not seek a return of the children “to his care.” He instead
seeks visitation and/or the reestablishment of a relationship.
[Father] cites Tenn. Code Ann. § 36-6-301 for the proposition
that it “favors visitation in order to maintain the parent-child
relationship even if the court finds that the non-custodial
parent has physical or emotionally abused the child.”
Memorandum of Law filed January 3, 2017 at page 5,
paragraph 22.
[Father]’s portrayal of the Tenn. Code Ann. § 36-6-301
grossly distorts the statute’s plain language. The pertinent
part of the statute is:
“After making an award of custody, the court
shall, upon request of the non-custodial parent,
grant such rights of visitation as will enable the
child and the non-custodial parent to maintain a
parent-child relationship unless the court finds,
after a hearing, that visitation is likely to
endanger the child’s physical or emotional
health. . . . If the court finds that the non-
custodial parent has physically or emotionally
abused the child, the court may require that
-9-
visitation be supervised or prohibited until such
abuse has ceased or until there is no reasonable
likelihood that such abuse will recur.” Tenn.
Code Ann. § 36-6-301.
[Father]’s actions have been found to “endanger the child’s
physical or emotional health.” The Court has prohibited
contact as a result of [Father]’s actions. It must now be
shown that there is no reasonable likelihood that such abuse
will recur prior to re-establishing contact.
Based on the evidence, the Court does not find by a
preponderance of the evidence that there is no reasonable
likelihood that such abuse will recur. The evaluation required
by the 2014 Order has not been completed in accordance with
the requirements/guidelines of the Tennessee State Sex
Offender Board. The material changes asserted by [Father]
do not correlate as it being appropriate to reestablish a
relationship between [Father] and the children.
[Father]’s Petition seeking visitation or re-establishment of a
relationship with the parties’ children is denied.
[Father] has asked this Court to modify the prohibition
against him contacting Mother by email concerning the
children and to increase the frequency with which he is to be
provided with school records and photos. The Court did not
hear any evidence that would indicate that either of these
requests was inappropriate. Accordingly, . . . Mother[] is to
provide [Father] with the children’s school grades at the
conclusion of each semester. Mother is to supply Father with
a photo of each child within one week of the child’s birthday
each year as well as a copy of each child’s annual school
photo. If an email by Mother requires a reply, [Father] shall
continue his current practice of replying to Mother through
her attorney. However, on each of those emails, he may also
carbon copy (“cc”) Mother so that she gets a copy without the
need for her counsel to forward it. [Father] shall make only
one reply to an email. No more than once a month, [Father]
may send an email to Mother concerning the children.
The trial court observed at the July 14, 2017, hearing on the motion to alter or
amend as follows:
- 10 -
This is a difficult case. [Father] has had orders and findings
made against him that are significant. Judge Blackwood’s
order required no contact between him and the minor children
at issue in this case.
As I read the law, in order to modify that, there must be
evidence by clear and convincing proof that there is no
reasonable risk of harm to the children.
I tried this case. I listened to Dr. Stanley, the expert on behalf
of [Father]. I listened to Nan Buturff, who is the children’s
therapist and continues to have some contact with them on an
ongoing basis, as well as Dr. Adler, who is the expert
involved for the Department of Children’s Services.
To address some of the issues [Father] raised, he indicates I
neglected to address the issue where the age of the children,
who are now . . . older than they were at the time of the
events that are at issue . . . that it’s a factor that I ignored . . . .
I discount that because the age of the children alone does not
indicate anything about the reasonable likelihood that an
offense will recur.
As he indicates, it makes them verbal and able to report and
less likely to be a victim, but it doesn’t change the balance as
I found it. If I neglected to put that in my order and make it
clear, that finding shall now be supplemented in the order.
With regard to the Static–99, I don’t believe that I can take
judicial notice of that. That is a test used in a field in which I
have no training and no expertise. And I heard one expert say
it was the right test to use, one expert who said that’s not the
best test to use, and here’s why. There are a number of other
tests that we would have used in civil litigation that would
have greater applicability.
In addition, the expert says that it measures not the risk of re-
offending, but the risk of getting caught, because it only says
that the percentage of people who have offended once who
get caught are x. This expert for DCS said the rate of re-
offense is five times the rate of being caught for recidivism.
- 11 -
I simply found that, as required by Judge Blackwood, a
minimum thing to do before I could revisit the issue with
regard to contact was that a psychosexual evaluation be
completed. I found and make it clear in my ruling that based
on the expert proof that I heard, one was not performed
within the standard requirements of the Tennessee Board such
that I can rely on it for the purposes of granting [Father] the
relief he was seeking.
With regard to the contact with mother, I listened carefully. I
have modified the relief that Judge Blackwood granted, to the
extent that I thought appropriate. I was asked not to modify
that contact between mother and father, and I did anyway. I
believe that I have narrowly tailored that relief to be
appropriate so that there is a greater exchange of information
that can flow.
Now, with regard to the substantive relief, . . . I understand
[Father]’s dissatisfaction with the numerous rulings of this
court and the appellate courts with regard to what’s going on
here, but I disagree that the compelling state interest of
maintaining the safety of these children, given the act that has
been found, and taking into account the proof of Nan Buturff,
the children’s therapist who says the risk of harm to the
children from resuming a relationship with [Father] at this
point in time is greater than the risk of harm to them from . . .
continuing to deny them the society of their father, weighs
against doing it.
In addition, there was testimony between the experts
regarding – to go into the psychosexual evaluation that I
found that is set out in my opinion, and I have not changed
my mind and I do not believe that there was, as Dr. Alder
indicated, a complete openness.
There is no showing on [Father]’s part how he would address
the disparity between his adamant insistence that he did
nothing wrong and the Court’s numerous findings at Juvenile
Court, at a trial de novo with this Court, and affirmed by the
Court of Appeals, that there was, in fact, inappropriate
contact involving one of these minor children. And until the
issues regarding [Father]’s attitude and some of those things
are resolved, this Court simply cannot find that the reasonable
- 12 -
likelihood of further harm to the children from a relationship
does not exist.
On August 29, 2017, the trial court entered an order denying Father’s May 31, 2017,
motion to alter or amend the judgment, in which he argued for the first time that the no
contact orders violated due process. Father thereafter filed a timely notice of appeal.
II. ISSUES
Father raises the following issues on appeal:
1. The order prohibiting Father from having any
contact with his children violates substantive due process.
2. The order prohibiting Father from contacting
Mother is unlawful and violates procedural and substantive
due process.
3. The trial court applied the wrong legal standards in
deciding whether to vacate the existing order.
4. The trial court applied the wrong legal standards in
deciding whether to modify the existing order.
5. The trial court erroneously failed to take judicial
notice of important facts as required by Rule 201 of the
Tennessee Rules of Evidence.
6. The trial court’s decision constitutes an abuse of
discretion, and the evidence preponderates against the trial
court’s decision.
III. STANDARD OF REVIEW
This court reviews a trial court’s denial of a motion for relief from a judgment
made pursuant to the Rules of Juvenile Procedure under an abuse of discretion standard.
In re M.J.H., No. W2012-01281-COA-R3-JV, 2013 WL 3227044, at *10 (Tenn. Ct. App.
June 25, 2013). A court abuses its discretion when it (1) applies incorrect legal
standards; (2) reaches an illogical conclusion; (3) bases its decision on a clearly
erroneous assessment of the evidence; or (4) employs reasoning causing injustice to the
complaining party. Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012). “The
- 13 -
abuse of discretion standard does not permit an appellate court to merely substitute its
judgment for that of the trial court.” Id. (quotations and brackets omitted).
A court takes judicial notice when it accepts, “without requiring . . . proof . . . a
well-known and indisputable fact,” State v. Lawson, 291 S.W.3d 864, 868 (Tenn. 2009),
the knowledge of which “is so notorious that everyone is assumed to possess it.” Smith v.
State, 607 S.W.2d 906, 907 (Tenn. Crim. App. 1980). Resort to judicial notice is further
limited by Tennessee Rule of Evidence 201, which provides that “[a] judicially noticed
fact must be one not subject to reasonable dispute, in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.” Id.
IV. DISCUSSION
Petition to vacate/modify
Father seeks review of the trial court’s denial of his petition to vacate or modify
the adjudicative and dispositional orders entered by the trial court in 2014. These orders
are not in the record. Accordingly, we are precluded from proper review. See Chiozza v.
Chiozza, 315 S.W.3d 482, 492 (Tenn. Ct. App. 2009); Tenn. R. App. P. 24. Father has
waived his right to appeal the trial court’s decision to deny him relief by failing to include
in the record the judgment from which he sought to be relieved. See Kelly v. Kelly, No.
M2015-01779-COA-R3-CV, 2016 WL 6124116, at *6 (Tenn. Ct. App. Oct. 19, 2016);
see also, Williams v. Williams, 286 S.W.3d 290, 297 (Tenn. Ct. App. 2008) (“The failure
of the appellant to ensure that an adequate transcript or record on appeal is filed in the
appellate court constitutes an effective waiver of the appellant’s right to appeal.”). We
are “precluded from addressing an issue on appeal when the record fails to include
relevant documents.” State v. Zirkle, 910 S.W.2d 874, 884 (Tenn. Crim. App. 1995).
Without an adequate transcript, we “must presume that every fact admissible under the
pleadings was found or should have been found in the appellee’s favor.” McDonald v.
Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989).
Despite the condition of the record on appeal, when viewed in conjunction with
the facts as set out in our prior opinion, we find support for the trial court’s decision to
deny Father’s petition to vacate or modify.
Law of the case
An appellate opinion becomes “the law of the case when a case is remanded for
further proceedings.” Gray’s Disposal Co., Inc. v. Metro. Gov’t of Nashville, 318 S.W.3d
342, 348 (Tenn. 2010). Under the “law of the case” doctrine, “an appellate court’s
decision on an issue of law is binding in later trials and appeals of the same case if the
- 14 -
facts on the second trial or appeal are substantially the same as the facts in the first trial or
appeal.” Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975
S.W.2d 303, 306 (Tenn. 1998) (citing Life & Cas. Ins. Co. v. Jett, 133 S.W.2d 997,
998099 (Tenn. 1939); Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 90 (Tenn. Ct.
App. 1996)). Adhering to the doctrine “promotes finality and efficiency in litigation,
ensures consistent results in the same proceeding, and assures that lower courts follow the
decision of higher courts.” Gray’s Disposal Co., 318 S.W.3d at 348 (citing State v.
Jefferson, 31 S.W.3d 558, 561 (Tenn. 2000); Harrison v. Laursen, 128 S.W.3d 204, 208
(Tenn. Ct. App. 2003)).
We have held that the “law of the case” doctrine operates as a bar against
extraordinary relief, such as that sought under Rule 60 during the proceedings on remand.
Tindell v. West, No. E2012-01988-COA-R3CV, 2013 WL 6181997, at *4 (Tenn. Ct.
App. Nov. 25, 2013). Father’s grounds for relief were previously addressed on appeal,
and to the extent that they were not, are waived for failure to be raised during the original
trial or upon the first appeal.3 See Tindell, 2013 WL 6181997, at *6 (finding that issues
raised by appellants in a Rule 60.02 motion for extraordinary relief filed during the
proceedings on remand from on earlier appeal were waived “either by failing to raise
them at trial, or by failing to raise them on the first appeal.”).
There are exceptions to the “law of the case” doctrine when: (1) the evidence
offered following the remand is substantially different from that in the earlier proceeding;
(2) the prior decision was clearly erroneous and would result in manifest injustice if
allowed to stand; or (3) the prior decision is contrary to a change in the controlling law.
Gray’s Disposal Co., 318 S.W.3d at 348. Father’s arguments are worded to meet these
exceptions, but all of them are meritless. As noted by the State, regarding exception (1),
Father’s only “newly discoverable” evidence was a single statement by the Child that
“maybe he put medicine on me.” This statement is not “substantially different” from the
evidence Father previously introduced in support of his defense that he was engaging in
“normal parenting behavior.” Regarding exception (2), the prior decision was not
“clearly erroneous,” as demonstrated by our prior opinion, and as to exception (3),
Father’s argument that the trial court may no longer make no contact orders under section
73-1-152 is unavailing, as the provision authorizes “grant[ing of] injunctive relief upon
such terms as the court may deem proper.”
As our judgment in In re Emmalee O. is “the law of the case,” the trial court may
not disturb it. Thus, the trial court did not abuse its discretion by denying that portion of
Father’s petition seeking to vacate the prior orders.
3
Father likewise waived his argument that the no contact orders violate due process by failing to
raise it during trial or the first appeal.
- 15 -
Changed circumstances
Under Tennessee Code Annotated section 37-1-139(b), “an order of the court may
be changed or modified . . . upon a finding of changed circumstances and that the change
or modification is in the best interest of the child.” Tennessee Rule of Juvenile Procedure
310(a)(3) similarly provides that an order made in the course of a dependency-and-
neglect proceeding “may be modified on the ground that, since the entry of the order,
changed circumstances and the best interest of the child require it.”
The final dispositional order specifically provided that Father may file a petition to
modify the no contact order subject to the requirements that he:
(1) [] complete a psycho-sexual evaluation administered by a
qualified evaluator or provider approved by the Tennessee
Sex Offender Board, (2) [] provide DCS with the identity of
the evaluator in a timely fashion to enable DCS to provide the
evaluator with necessary information to initiate and complete
the required psycho-sexual evaluation, (3) [] engage and
cooperate with any recommended treatment from the psycho-
sexual evaluation, and (4) [] authorize the release of the
psycho-sexual evaluation and treatment records to DCS[.]
Father raised the following justifications for modifying the no contact order: (1) that he
had complied with the dispositional order by obtaining a psychosexual evaluation, which
indicated he was a low risk to reoffend; (2) that the CASA volunteer appointed by the
juvenile court recommended visitation; and (3) that the children were “suffering
irreparable harm” by being separated from Father.
In reviewing Father’s requested relief, the trial court properly utilized the standard
established by Tennessee Code Annotated section 36-6-301 for granting visitation to
noncustodial parents:
After making an award of custody, the court shall, upon
request of the noncustodial parent, grant such rights of
visitation as will enable the child and the noncustodial parent
to maintain a parent-child relationship unless the court finds,
after a hearing that visitation is likely to endanger the child’s
physical or emotional health. . . . If the court finds that the
noncustodial parent has physically or emotionally abused the
child, the court may require that visitation be supervised or
prohibited until such abuse has ceased or until there is no
reasonable likelihood that such abuse will recur. . . .
- 16 -
(Emphasis added). We have previously upheld the trial court’s determination that Father
committed sexual abuse against the Child. In re Emmalee O., 464 S.W.3d 311. Thus, the
trial court properly found that Father had “physically or emotionally abused” the
children, giving it express statutory authority to prohibit visitation “until there is no
reasonable likelihood that such abuse will recur.” Tenn. Code Ann. § 36-1-301.
Psychosexual evaluation
Father requested that the trial court take judicial notice of several statements
relating to the “Static-99,” described by Mr. Stanley as “a rapid risk assessment of sexual
offense recidivism” developed in Canada. Since 1990, judicial notice of adjudicative
facts has been governed by Rule 201 of the Tennessee Rules of Evidence. A judicially
noticed fact must be one that is not subject to reasonable dispute. Tenn. R. Evid. 201(b).
It must be either (1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned. Tenn. R. Evid. 201(b). The “facts” Father presented
for judicial notice related to blanket conclusions about recidivism rates and Father’s own
score on the assessment. As argued by the State, facts about Canadian sex-offender risk
assessments – especially those relating to an individual score – are not “generally
known.” See Tenn. R. Evid. 201. Likewise, we cannot conclude that the Canadian
government’s website – Father’s alleged source for these facts – is so unquestionably
reliable to the point that anything found there is incapable of “reasonable dispute.” Id.
Accordingly, the trial court did not err by failing to take judicial notice of the Static-99
facts.
Father further argued his psychosexual evaluation proved that “there is zero risk
[Father] would sexually abuse anybody.” However, Mr. Stanley explained that the risk
assessment instruments he employed in Father’s evaluation were “based upon previous
criminal history and sexual convictions, of which [Father] had none.” It appears that he
believed there had been no legal finding that Father had committed any type of sexual
offense:
My understanding was it’s a civil court and their language
that orders are written in a lot of times have in the beginning,
or very close to the beginning, “in the opinion of this court.”
Okay? An opinion is different in my eyes, okay. I don’t work
within the legal system. An opinion is different than a
judicial finding, court order. So, you know, if that’s an error
on my part, I apologize.
Both Dr. Adler and Ms. Buturff agreed that the Static-99 risk assessment was
inappropriate to use on Father, and Dr. Adler discussed how Mr. Stanley’s evaluation
- 17 -
failed to comply with best practice standards established by the Tennessee Board of
Sexual Offender Treatment Providers:
It was based solely on Father’s self-report with no
consideration of corroborating or contradictory collateral
evidence.
The instruments Mr. Stanley used to measure Father’s re-
offense risk (the Rapid Risk Assessment of Sexual Offense
Recidivism [RRASOR], Static-99, and Bays and Freeman-
Longo) were outdated, unreliable or invalid, and not
recommended by the Board.
The personality assessment inventory (the PAI) had “nothing
to do with risk to re-offend.”
It failed to measure deviant sexual interest -- “the single most
significant factor” to predicting recidivism.
The report failed to include the Child’s disclosures of sexual
abuse despite research demonstrating that such young
children are “generally the best and most reliable source for
what happened.”
Mr. Stanley dismissed the abuse as “allegations” and failed to
consider the trial court’s finding of sexual abuse as affirmed
on appeal.
In Dr. Adler’s eyes, the most significant issue with Mr. Stanley’s evaluation was Father’s
refusal to provide information about his sexual behavior and the brevity of Father’s one-
paragraph sexual history. Dr. Adler noted that such information would normally be five
to ten pages for a man of Father’s age.
So if the whole purpose for me is to assess what you need
from a treatment standpoint or assess what kind of problems
you might be at risk to have, I would need to know the sexual
history pretty in depth to make those kinds of conclusions . . .
So just from that alone, this isn’t a psychosexual evaluation,
among the other problems that we have.
(Emphasis added.).
- 18 -
Dr. Adler concluded that the evaluation’s numerous deficiencies rendered it
insufficient to support any finding about Father’s risk to reoffend. He further disagreed
with Mr. Stanley’s conclusion that Father “would be an excellent candidate for a
revision/amendment to the current child custody visitation order.” According to Dr.
Adler, before recommending contact with a perpetrator of abuse, approved treatment
providers must first satisfy “very specific” Board-mandated guidelines designed to avoid
retraumatizing the victim - a risk during even supervised visitation. The guidelines
require that (1) the perpetrator acknowledge and take responsibility for the offense and
that (2) the victim be strong and stable enough to recognize that they were not at fault for
their abuse. It is clear that Mr. Stanley’s report failed to demonstrate that either condition
had been met. Accordingly, the trial court properly dismissed Mr. Stanley’s evaluation as
“unreliable.”
Additionally, the trial court properly dismissed the CASA volunteer’s
recommendation to move toward supervised visitation, as she admitted to no expertise or
training with regard sexual abuse issues and relied “strictly” on the conclusions of Mr.
Stanley’s discredited evaluation in making her recommendation. Further the trial court
did not err by concluding that Father had failed to establish a “cause and effect
relationship” between the Child’s emotional and behavioral problems and his absence
from their lives. Ms. Buturff opined from her six years of counseling the Child that the
emotional and behavioral issues were primarily the result of Father’s sexual abuse and,
more recently, the death of the maternal grandfather. Ms. Buturff recommended against
visitation.
The evidence before us on this appeal reveals that contact with Father at this time
would not be in the best interests of the children. Accordingly, the trial court did not
abuse its discretion by denying that part of Father’s petition seeking to modify the no
contact order.
V. CONCLUSION
The judgment of the trial court is affirmed and this cause is remanded to the trial
court for collection of the costs below. The costs on appeal are assessed against the
appellant, Alan O.
_________________________________
JOHN W. MCCLARTY, JUDGE
- 19 -