In re Conservatorship Turner, M2013-01665-COA-R3-CV

Decision Date09 May 2014
Docket NumberNo. M2013-01665-COA-R3-CV,M2013-01665-COA-R3-CV
CourtCourt of Appeals of Tennessee
PartiesIN RE: CONSERVATORSHIP OF JACK WAYNE TURNER

Appeal from the Circuit Court for Davidson County

No. 12P305

David Randall Kennedy, Judge

This is a conservatorship modification case. Appellant/Mother sought modification of the trial court's previous order, naming Appellee/Father as the conservator over the parties' mentally-disabled, adult son, and mandating that Mother's visitation with the Ward be supervised. Because Mother had made numerous, unfounded allegations of sexual abuse against the Ward by his older brother, the trial court enjoined Mother from making any future allegations of sexual abuse against the Ward by his older brother, and further enjoined her from discussing, with the Ward, any purported sexual abuse by his older brother. Although the trial court modified its previous order to grant Mother four additional hours of visitation per month, it ordered that her visitation would continue to be supervised. The court further modified the conservatorship by holding that Father, at his discretion, would be allowed to tape record any telephone conversations between the Ward and Mother. On appeal, Mother contends that the injunction constitutes an unconstitutional prior restraint on her free speech. We adopt the "modern rule," holding that defamatory speech may be enjoined after a determination that the speech is, in fact, false, and upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been determined to be false. We conclude that the injunction in this case satisfies both of these criteria such that it does not constitute a prior restraint on Mother's free speech. Mother also appeals the trial court's order concerning the amount of visitation, the fact that the visitation is to be supervised, and recording of her telephone conversations with the Ward. We conclude that the trial court did not abuse its discretion in allowing Mother eight hours of visitation per month. Furthermore, because of Mother's behavior during the pendency of this litigation, we further conclude that the imposition of supervised visitation and the recording of her telephone conversation serve two functions. First, these requirements preserve the Ward's best interest by providing safeguards against future negative impacts from Mother's actions. Second, because Mother has shown a propensity to disregard the orders of the court, the requirements ensure that the court's orders will be followed. Because the evidence does not preponderate against the trialcourt's findings, and there is no abuse of the trial court's discretion, we affirm and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and

Remanded

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which DAVID R. FARMER, J., and HOLLY M. KIRBY, J., joined.

Ashonti T. Davis, Nashville, Tennessee, and Susanna M. Moldoveanu, Memphis, for the appellant, Marceia Turner-Bonin.

Stanley A. Kweller and Margaret Lane Johnson, Nashville, Tennessee, for the appellee, Bruce Wayne Turner.

OPINION

Appellant Marceia Catherine Turner-Bonin ("Mother") and Appellee Bruce Wayne Turner ("Father") are the parents of Jack Wayne Turner ("Son," or "Ward"). Jack Wayne Turner was born in May 1988; the parties are also the parents of an older child, Joseph Turner ("Joseph" or "Older Son"). Son was born with Downs Syndrome, and has had special needs throughout his life. Although the procedural history of this case is protracted, beginning with the February 24, 2012 filing of an emergency petition for conservatorship of Jack Wayne Turner by Father, the issues before us in this appeal are relatively narrow in that they arise from the trial court's decision on two motions filed by Mother. As discussed, infra, the first motion, filed on December 14, 2012, was titled "Motion for Restoration of Visitation/Parenting Time and Other Relief;" the second motion, filed on January 15, 2013, was titled "Motion for Immediate and/or Emergency Relief." Before addressing these motions and the court's ruling on them, we begin with a brief history of the case.

The trial court appointed Robert W. Briley to act as Son's guardian ad litem in this case. We take the relevant background history from Mr. Briley's second answer and report to the trial court, filed on August 17, 2012. These predicate facts appear to be uncontested in the record. Mother and Father were divorced in 1994, while living in Texas. Mother was granted primary custody of the parties' two children. Sometime in 1998, the children came to live with Father because of some type of disturbance in the Mother's life centered around domestic violence and alcohol abuse. An order was allegedly entered in the parties' divorce case, which order granted temporary custody of the children to Father; this order is not in our record. Son remained in Father's care, even after he reached the age of majority in 2006. Although the dates are uncertain, it is undisputed that Father subsequently married JillTurner, and moved to Nashville with the children. Mother followed them to Tennessee. Father later moved with the children to Westland, Michigan; Mother remained in Nashville, where she still resides.

Since the Father assumed custody of the children, Mother has had only limited visitation, which was granted at Father's discretion. In 2008, Mother began treatment for alcoholism, and has allegedly remained sober since August of 2008. In 2011, Mother was allegedly advised by legal counsel that, because Son had reached the age of majority and because there was no conservatorship in effect over him, she would not violate any court order if she chose to bring Son back to Nashville with her during her scheduled Christmas visitation that year. Therefore, in December of 2011, while on a pre-arranged day visit with Son, Mother refused to return Son to Father, and brought him to Nashville.

While Son was in Nashville with Mother, on January 12, 2012, she filed a petition for an order of protection in the Davidson County Circuit Court. Therein, Mother alleged that both she and Son were afraid of Father, that Father had drugged Son and had kept him locked in the basement, and that Father would not allow him contact with Mother. In response, on February 24, 2012, Father filed an emergency petition for conservatorship of Son in the Davidson County Circuit Court's Probate Division. Therein, Father averred that Mother's objective in keeping Son was to obtain his Social Security Disability benefits, and that the allegations in her petition for an order of protection were false. On the same day, February 24, 2012, the trial court dismissed Mother's petition for an order of protection. Thereafter, on March 29, 2012, Mother filed an intervening petition, requesting that she be appointed Son's permanent conservator. An agreed order was entered on March 29, 2012. The agreed order provided that the parties would propose a qualified psychiatrist to evaluate Son. In the interim, the order provided that Son would remain in Mother's custody, and that Father would have scheduled visitation and daily telephone calls. Also on March 29, 2012, the trial court heard testimony from Son's relatives, as well as a Children's Counselor with the Domestic Violence Unit of the Metropolitan-Nashville Police Department. The court subsequently entered an order, on May 8, 2012, regarding temporary conservatorship for health care purposes and access to HIPPA protected information. In this order, the court found, by clear and convincing evidence, that Son was "in immediate need of a temporary conservator for health care," and that Mother would serve as Son's health care conservator on an interim basis, until such time as the guardian ad litem could prepare a full report based on current circumstances, and until such time as Son could be independently evaluated.

The aforementioned evaluation was conducted by a psychiatrist, Dr. Casey Arney. The guardian ad litem's second answer and report of August 17 notes that: "[M]other has made several reports about the [F]ather to the police since she has been in possession of [Son], none of which have resulted in any action or further investigation." The guardian adlitem indicated that he had spent considerable time with Son and members of the family. He noted that Son remained calm and appeared comfortable in the presence of both parents and, in sum, opined that there was "no evidence that [Son] is being or has been abused or neglected by either the [F]ather (and family) or [M]other." As included in the guardian ad litem's report, Dr. Arney concluded that Son was "not capable of providing meaningful substantive responses to the questions presented in this action." Based upon the totality of the evidence he reviewed, the guardian ad litem made the following recommendations:

There is no dispute that [Son] needs a conservator. Although disputed, there is no evidence that [Son] has ever been abused or neglected while in his father's custody or care . . . . Both the mother and father are capable of serving as [Son's] conservator and of providing him with the educational and other opportunities for him to move towards living as independent a life as is possible, and everyone agrees that this should be the stated goal.
The quality that materially separates the parties, however, is stability. The mother's unilateral decision to bring [Son] to Nashville and her lack of participation in [Son's] life over the years for whatever reason, fail to demonstrate the type of decision making required of a conservator under these circumstances. The father, on the other hand, has shown the ability to keep [Son] involved in educational and extracurricular programs consistently over a period of years. . . . This is not to say that the mother is not capable of providing for [Son] as she has demonstrated over the past few
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