                                                                                                                        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
                           ___________________________________

                                    No. E2018-01515-COA-R3-JV
                               ___________________________________

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.

                                                          -1-
                                       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

                                           -2-
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.

                                                     -3-
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.


                                            -4-
              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

                                           -5-
              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.


                                           -6-
                     (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

                                            -7-
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.


                                            -8-
       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....

                                          -9-
              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…



                                        *      *       *


                                             - 10 -
              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




                                            - 11 -
