          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D19-1281
                  _____________________________

NATALIYA RENO,

    Petitioner,

    v.

RICHARD RENO,

    Respondent.
                  _____________________________


Petition for Writ of Certiorari—Original Jurisdiction.

                         October 3, 2019


JAY, J.

      The Former Wife has filed a petition for writ of certiorari
seeking review of the trial court’s Order on Former Husband’s
Motion for Mental Health Evaluation of Former Wife, entered
pursuant to Florida Family Law Rule of Procedure 12.360(1).
Relief by way of a petition for writ of certiorari requires a
demonstration of material injury not remediable on appeal—the
jurisdictional threshold—and a departure from the essential
requirements of the law. Oldham v. Greene, 263 So. 3d 807, 811
(Fla. 1st DCA 2018) (citing State, Dep’t of Revenue v. Hartsell, 189
So. 3d 363, 364-65 (Fla. 1st DCA 2016)). “Ordering a compulsory
medical examination meets the jurisdictional threshold.” Id.
(citing J.B. v. M.M., 92 So. 3d 888, 889 (Fla. 4th DCA 2012)).
Accordingly, the question of our jurisdiction having been settled,
the issue we must address is whether the trial court’s order
departed from the essential requirements of the law.

                                I.

     In a bifurcated proceeding, the parties were granted a
Judgment of Dissolution of Marriage on September 16, 2016.
Subsequently, on March 27, 2017, the trial court heard the
remaining issues set forth in the Former Husband’s Petition and
the Former Wife’s Counter-Petition for Dissolution of Marriage, as
well as the Former Husband’s Amended Motion for Contempt. Two
children were born of the marriage. Sadly, following the entry of
the Final Judgment on the pending petitions, the parties’ youngest
child—four-year-old A.—found himself directly in the middle of the
emotional turmoil of his parents’ hostile divorce. To say that the
post-dissolution   atmosphere      was     contentious     is   an
understatement.

     Both parents have impressive credentials. The Former
Husband is a pediatrician. The Former Wife is a board-certified
family nurse practitioner, as well as a board-certified psychiatric
nurse practitioner treating wounded and disabled veterans at a
Veteran’s Administration clinic. In the Final Judgment ultimately
rendered on January 18, 2018, the trial court found that both
parents “have the best interest of their children at heart” and
“enjoy a close parent/child relationship.” It also found, however,
that the Former Wife had engaged in “way over the top negative
behavior which places her desires over that of the children.”
Furthermore, the court found that “[t]he children have
experienced greater stability and positivity with the Father, with
the Father providing more consistent behavior towards the
children.” Considering the mental and physical health of the
parents, the trial court found that both were in good health, but
went on to note that due to the number of false reports it had
received, the Department of Children and Families requested that
the Former Wife undergo a mental health evaluation—which she
refused to do.

     Not surprisingly, the trial court found that communication
between the parents concerning the children “fell short,” with the
Former Wife providing “minimal information” regarding the
children’s health needs. Also, the court found that there had been
                                2
numerous—unfounded—reports of domestic violence, child abuse,
and neglect leveled by the Former Wife against the Former
Husband. The Sheriff’s Office and the Department of Children and
Families were often dragged into the fray when called upon by the
Former Wife to conduct welfare checks on the children and
physical examinations of A., after the children had been in the
Former Husband’s care—complaints that were invariably found to
be without substance.

     Yet, notwithstanding the trial court’s negative rhetoric
concerning the Former Wife, in the end, it found that it was in the
children’s best interests to adopt a shared, rotating parenting plan
under which each parent would have the children every other
week, from Monday to Monday. The Former Husband, though, was
granted sole parental responsibility “for making ultimate major
decisions as to the children’s medical/health needs; and
academic/educational needs of the children.” In addition, the court
concluded “it would be beneficial for both parties to engage in
counseling to address the stress and anger that has arisen over the
course of co-parenting.” (Emphasis added.) Accordingly, it ordered
that both parents “seek one on one counseling for stress-related
and anger issues.”

    We recently affirmed the trial court’s Final Judgment,
without opinion, in Reno v. Reno, 274 So. 3d 1061 (Fla. 1st DCA
2019) (table).

     Meanwhile, on November 11, 2018, the Former Husband filed
his Emergency Motion for Mental Examination and Supervised
Timesharing pursuant to Florida Rule of Civil Procedure 1.360 and
rule 12.360. In his motion, the Former Husband alleged that the
Former Wife’s “psychological disorder and mental problems”
“substantially impact[] her ability to parent” and “prevent[] her
from being able to properly care for” the minor children. He went
on to claim the Former Wife’s “mental health is in controversy,”
and “good cause” had been shown based on the joint behavior of
the Former Wife and her mother in “engaging in a pattern of
seeking unnecessary medical treatment for the minor children
based on false allegations of physical and sexual abuse of the minor
children,” which reports “continue to be deemed unfounded.” The
Former Husband further contended:

                                 3
    The minor children are being subjected to painful and
    embarrassing prodding and scrutiny of their most private
    areas in a medical and law enforcement setting which is
    causing a harmful, negative, and detrimental effect on
    the children, and is completely the result of the Former
    Wife’s continued erroneous beliefs of abuse, despite all
    evidence to the contrary by professional investigators.
    The Former Wife and her mother . . . previously
    contained their allegations of such abuse with the
    Former Husband as their target[], but now they have
    widened their scope to make allegations of other third
    parties who come into contact with the children.

    The hearing on the Former Husband’s motion was held on
February 1, 2019. There, the Former Husband testified that the
parties’ sons were ages four and eight. While he agreed there had
been a history of unfounded accusations brought by the Former
Wife “and others” against him of physical and sexual abuse, he
chose to focus on a more recent event that had occurred, which
prompted his motion for a mental examination of the Former Wife.

    According to his testimony, on October 15, 2018, the children
were turned over to the maternal grandmother in a regularly
scheduled custody exchange. Once home, the grandmother gave A.
a bath and an anal exam. She then called a neighbor, who was a
pharmacist, to come over to exam A.’s anus for signs of abuse. After
the pharmacist examined A., they called another neighbor, who
was allegedly a nurse, and took A. to her home for an additional
examination. One of those neighbors contacted the Department of
Children and Families and made a complaint. A. was taken to the
emergency room where he was examined by a physician’s assistant
based on the grandmother’s complaint that there was rectal
redness, stretching, and bruising noted on A.’s anus following his
return from his father’s house.

     According to the Former Husband, when A. was asked at the
hospital if he had any “boo-boos,” he smilingly said no. But then,
the Former Husband recited directly from the hospital report,
which recounted the Former Wife’s claim that A. had told her and
the others at her house that


                                 4
    Jacob and his Father put something in his bottom and
    played with his bottom. Grandmother states that eight
    months ago or so, the child came to her and [said] his pee-
    pee was yum-yum, and that you eat it. Grandmother
    states that she asked the older brother and he wouldn’t
    tell them anything for two days, and then he told her that
    Jacob took him upstairs and made the child eat his pee-
    pee and told the child it was yummy.

No one at the hearing ever explained who “Jacob” was.

    A thorough examination by the physician’s assistant
uncovered only a rash, and no sign of rectal trauma. Continuing to
read from the medical record, the Former Husband stated that the
Former Wife had asked whether A. needed a rape kit performed.
The maternal grandmother interposed that she had been in child
care for over twenty years and was “very convinced” that A. had
been molested. A call had earlier been made to the Walton County
Sheriff’s Office, and a “Deputy McIntosh” was listed on the report
as being the responding officer. A child investigator from the
Walton County office of the Department of Children and Families
was contacted and advised the deputy that “no rape kit was
recommended.”

     The Former Husband was willing to accept that the earlier
false allegations of molestation brought against him by the Former
Wife were motivated by malice, but presently, his concern was that
she had a mental disorder, insofar as she really believed he was
abusive. When asked how it was negatively affecting the children,
the Former Husband expounded generally that they had “to
undergo embarrassing and uncomfortable and frightening
physical exams, including genital and anal exams, sometimes by
multiple strangers,” and opined that the children should not be
“guinea pigs for some sick ulterior motives.” Although the Final
Judgment had awarded him ultimate decision-making on all
medical issues with the children, he asserted that the Former Wife
never consulted with him first, before taking the children to the
emergency room. He testified that all the complaints to the
Department of Children and Families had been ruled to be
unfounded. He attributed the cause of A.’s “perianal dermatitis” to
his chronic constipation. When A. was with him, he treated the

                                5
condition with high fiber foods and “gentle laxatives.” Yet, despite
the foregoing parade of horribles described by him, the Former
Husband admitted that he willingly exchanged weekly custody of
the children to the former Wife—earlier than scheduled one
weekend in order that he and his current wife could celebrate their
wedding anniversary.

     Funmilayo Reno, the Former Husband’s current wife, testified
that she believed the Former Wife and her mother were acting in
concert to create a volatile environment, causing A. to scream
when the exchange took place between her and the grandmother.
Mrs. Reno claimed that the grandmother would often whisper
something to the children “in Russian” during the exchange,
invariably causing them to cry before handing them over to her.
Mrs. Reno suggested that it was the Former Wife and the
grandmother who were actually physically harming the children
so they could later blame it on the Former Husband. That belief
was based on comments made to her own mother by the eldest
child to the effect that his maternal grandmother had hit him. She
also said that A. is “constantly saying something.” Mrs. Reno
denied seeing anything wrong with A.’s rectum when she bathed
him, and she confirmed that he suffered from chronic constipation.

     According to Deputy Jeffrey McIntosh’s testimony, when he
responded to the Former Wife’s home on October 15, 2018, he met
with the Former Wife, the grandmother, and the two neighbors.
He was not informed that one of the neighbors was a nurse, but he
did know that the other neighbor was a pharmacist. He was told
that when the grandmother picked up the children after they had
been at their father’s house, A. complained that his bottom hurt.
When she got him home, the grandmother examined A. and
noticed the redness and what she thought was swelling around his
anus. When the Former Wife arrived home, she thought she also
saw some bruising. Deputy McIntosh said he did not examine A.,
but he did look at some photographs taken by one of the neighbors.
He contacted the Department of Children and Families and
explained the situation to an investigator. He then relayed the
information he received from the investigator to the Former Wife.
She made the decision to take A. to the emergency room.
Significantly, Deputy McIntosh did say that in all of his dealings
with the Former Wife, he did not detect in her any mental disorder.

                                 6
He also affirmed that he took seriously the allegations of child
abuse on the day in question.

     The last witness to testify was Dr. Jennifer Masino, a clinical
psychologist who had been counseling the Former Wife for the past
two years. In her opinion, she saw no evidence that the Former
Wife had a psychological disorder. She said that “[t]o the contrary,”
she found the Former Wife “to be quite resilient in the face of a lot
of stressful circumstances.” The Former Wife had informed Dr.
Masino on “numerous” occasions of her belief that the children
were being abused by her ex-husband, but the Former Wife never
asked her to report it to the Department of Children and Families.
However, in accordance with her professional duty, Dr. Masino did
report the alleged abuse to the authorities. She remarked that she
had no reason to believe that the Former Wife’s reports were not
made in good faith and reiterated that she saw no evidence “of a
mental illness, especially one that would endanger the children.”
Dr. Masino testified that she had discerned no “pathology” in the
Former Wife that would call for additional psychological testing.

     At the conclusion of the hearing, the trial court made an oral
finding that, to the extent the Former Husband’s request for a
mental health examination of the Former Wife was “relevant to
the parenting and contact with the children,” it was “a matter in
controversy.” It then announced that the salient issue remained to
be determined was whether “good cause” for the examination had
been demonstrated.

     Later, on March 6, 2019, the trial court entered its Order on
Former Husband’s Motion for Mental Health Evaluation of Former
Wife. In the order, the court found “a pattern by Former Wife to
not simply seek medical attention for a child, but rather to insist
that a particular diagnosis of intentional abuse be included in
treatment notes for the child.” It further noted that the Former
Wife had been in counseling “for an extended period of time to deal
with the pressures resulting from her divorce.” The court expressly
declared it was “persuaded” that the Former Husband’s motion
was not an effort “to alter the child custody determination
previously rendered in this cause.” It did, however, express its
concern “about the effect the repeated reports of abuse and the
contacts with law enforcement, child advocates, medical personnel

                                 7
and medical exams which follow the reports [brought] to these
children,” and it found that “the anxieties of a child being
examined in the most personal of ways by strangers . . . seem[ed]
lost on the Former Wife.” The court further found that the Former
Wife’s “apparent lack of awareness of the emotional harm being
thereby caused to these young children constitute[d] good and
sufficient cause . . . to order that the Former Wife submit to a
compulsory mental health examination” to determine her fitness
to parent the parties’ children.

     Despite its concerns, however, the trial court denied the
Former Husband’s motion to restrict the Former Wife’s time-
sharing of the children to “supervised only.” The court did not
believe that the facts of the case rose to the level where the well-
being of the children was at stake. Therefore, it held, pending the
submission of a psychological evaluation, it would not alter the
time-sharing established by the Final Judgment.

                                II.

    As we observed in Oldham v. Greene:

         Pursuant to rule 12.360, a request for a
    psychological examination must be related to “a matter
    in controversy,” and the party must have “good cause for
    the examination.” Fla. Fam. L. R. P. 12.360(a)(1),(2). The
    requesting party has the burden to satisfy the “in
    controversy” and “good cause” prongs. Manubens v.
    Manubens, 198 So. 3d 1072, 1074 (Fla. 5th DCA 2016);
    see also Fla. Fam. L. R. P. 12.360(a)(1),(2). A court’s
    failure to make any findings as to the requirements of
    rule 12.360 is a departure from the essential
    requirements of law. See Russenberger v. Russenberger,
    623 So. 2d 1244, 1245-46 (Fla. 1st DCA 1993), aff’d 639
    So. 2d 963 (Fla. 1994); Manubens, 198 So. 3d at 1074-75;
    cf. Wade v. Wade, 124 So. 3d 369, 375 (Fla. 3d DCA 2013)
    (explaining the complete failure to address a requirement
    “alone may be sufficient to overturn the trial court’s
    order”).

263 So. 3d at 811-12.


                                 8
                        A. “In Controversy”

    The “in controversy” element was examined at length in
Oldham, where we defined the concept as follows, giving examples
of when mental health is, and is not, “in controversy.” We said:

         Seeking custody, in and of itself, does not place the
    parent’s mental condition “in controversy,” Wade, 124 So.
    3d at 375, nor is “mere relevance to the case” sufficient.
    Russenberger, 623 So. 2d at 1245. The mental condition
    alleged “must directly involve a material element of the
    cause of action.” Williams v. Williams, 550 So. 2d 166,
    167 (Fla. 2d DCA 1989). There must be “verified
    allegations that the parent in question is having mental
    problems that could substantially impact his or her
    ability to properly raise children.” Wade, 124 So. 3d at
    375; see also Asteberg v. Russell, 144 So. 3d 606, 608 (Fla.
    2d DCA 2014) (a belief the primary residential parent is
    not supporting and promoting the child’s relationship
    with the other parent did not put mental health in
    controversy); Williams, 550 So. 2d at 167 (claims a father
    failed to use a car seat for the child, that the child wet his
    pants after a visit with the father, and that the father
    used bad language in front of the child and was unstable
    were insufficient to put the father’s mental health in
    controversy). Mental health has been declared “in
    controversy” where a father seeking parental
    responsibility made comments to a minor child that he
    was contemplating suicide. Barry v. Barry, 159 So. 3d
    306, 307-08 (Fla. 5th DCA 2015). Baker Act proceedings
    or a diagnosed schizoaffective disorder can place mental
    health in controversy. Bailey v. Bailey, 176 So. 3d 344,
    346-47 (Fla. 4th DCA 2015); J.B. [v. M.M.], 92 So. 3d
    888[,] 890 [(Fla. 4th DCA 2012)].

263 So. 3d at 812 (emphasis added). We moved on to stress that
“[t]he focus of rule 12.360 is not on good or bad parenting, but on
something larger, some greater indicator of deeper mental health
concerns.” Id. We also noted: “The burden of proof is heightened
when the party subject to the request for an examination has not


                                  9
voluntarily placed that issue in controversy.” Id. (citing Wade, 124
So. 3d at 373).

     In the case at bar, the trial court, at the conclusion of the
hearing, orally found the Former Wife’s mental health to be “in
controversy,” with little elaboration other than it was “relevant to
the parenting and contact with the children.” But as Oldham held,
“‘mere relevance to the case’” is not sufficient. Id. (quoting
Russenberger, 623 So. 2d at 1245). There were no findings made of
any kind exemplifying mental illness on the level mentioned in the
above quote. Certainly, the Former Wife did not voluntarily place
her mental health in controversy. And, however disturbing one
might view her behavior towards the Former Husband regarding
his alleged treatment of A., nothing in the evidence presented by
the Former Husband was sufficient to meet the “heightened
burden” suggesting “some greater indicator of deeper mental
health concerns.” Id.

     Moreover, neither the trial court nor the Former Husband
seemed to be so moved by the Former Wife’s alleged mental health
issue as to seek immediate removal of the children from her care.
The trial court was “persuaded” that the Former Husband’s motion
was “not an effort by [him] to alter the child custody determination
previously rendered in this case.” And the Former Husband
tellingly testified that when he and his current wife wanted to
celebrate their wedding anniversary, he was more than willing to
transfer physical custody of the children to the Former Wife earlier
than scheduled, despite his belief that the Former Wife had a
“psychological disease.”

     Besides, as revealed above, the mental health of the Former
Wife was never placed at issue by the Former Husband’s
dissolution petition or afterwards, prior to the entry of the Final
Judgment, even though he filed motions for contempt due to the
Former Wife’s harassment. The trial court at that point
acknowledged the highly charged nature of the case before it and
ordered that both parties receive counseling for anger
management and to relieve the stress. As was true in Oldham, it
stands to reason here that the foregoing actions contradict a firm
belief that the Former Wife suffers from mental health issues
beyond the ordinary stress associated with an acrimonious and

                                10
bitter divorce—when, as is so often the case, the children are the
victims of the parents’ dispute. Id. at 813. Therefore, we conclude
that the trial court departed from the essential requirements of the
law in finding that the Former Wife’s mental health was “in
controversy.”

                         B. “Good Cause”

     But even if the “in controversy” prong was satisfied, we hold
that the Former Husband failed to establish the requisite “good
cause” for a psychological evaluation of the Former Wife. “Good
cause should be based on evidence that the parent has been unable
to meet the needs of the children. . . . The requesting party must
show that the alleged mental illness places the child at risk of
abuse, abandonment or neglect.” Oldham, 263 So. 3d at 813
(internal quotation marks omitted) (citations omitted). Moreover,
“it belies good cause to believe a party’s mental status would
jeopardize a child’s well-being, where a court orders a
psychological evaluation and also awards continued timesharing,
unsupervised and overnight, with that party.” Id. (citing Wade,
124 So. 3d at 376-77).

     Below, the trial court expressed concern over the claimed
“emotional harm” suffered by the children while being examined
“in the most personal way by strangers,” and believed this fact was
“lost” on the Former Wife. But there was absolutely no
quantitative proof that the youngest child, A.—who truly was
caught in the middle of this difficult mess—was suffering
emotionally, much less suffering abuse, abandonment, or neglect.
Furthermore, the Former Wife did not testify at the hearing, and
there was no other evidence to support the trial court’s perception
that the supposed emotional repercussions on the children were
“lost” on her. Although the trial court emphasized that the Former
Wife was seeing a psychologist due to the stress of the divorce, it
ignored the fact that it had earlier ordered both parties to seek
counseling to deal with anger and stress issues. And again, we note
the trial court’s express finding that the Former Husband’s motion
was not “an effort” “to alter the child custody determination
previously rendered” in the cause, which “belies good cause to
believe a party’s mental status would jeopardize a child’s well-


                                11
being.” Id. Thus, the evidence presented failed to meet the
necessary standard.

    We close by once more turning to our decision in Oldham,
which acknowledged the weighty due process and privacy
considerations that hang in the balance in these types of
proceedings:

         A forced psychological examination has serious
    privacy implications; people have the right to be free from
    compulsory examination absent circumstances meeting
    the requirements. In the Interest of T.M.W., 553 So. 2d
    260, 263 (Fla. 1st DCA 1989) (quoting Schottenstein [v.
    Schottenstein], 384 So. 2d [933 (Fla. 3d DCA 1980)]). The
    Florida Supreme Court has cautioned against the use of
    mental health evaluations as vindictive tools in family
    law cases. See Russenberger, 639 So. 2d at 966 (“A
    parent’s request for a psychological evaluation may well
    be an expression of that parent’s vindictiveness and could
    have the effect of making the child a victim.”).

263 So. 3d at 813.

                               III.

    The evidence failed to establish that the Former Wife’s mental
condition was “in controversy,” and that “good cause” existed for a
psychological evaluation. Accordingly, the trial court’s order
granting the Former Husband’s motion for a mental health
evaluation departed from the essential requirements of the law.
The order is QUASHED.

ROBERTS, J., concurs; WOLF, J., dissents without opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________



                                12
R. Hadley Sanders, Hadley Sanders, P.A., Pensacola, for
Petitioner.

No appearance for Respondent.




                                13
