Jennifer Linder (Johnson) v. Deron Johnson
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
WENDELL L. GRIFFEN, JUDGE
DIVISION II
CA 06-033
November 29, 2006
JENNIFER LINDER (JOHNSON)
APPELLANT
AN APPEAL FROM CLEBURNE
COUNTY CIRCUIT COURT
[NO. E-1998-133-4]
V.
HON. TIM WEAVER, JUDGE
DERON JOHNSON
APPELLEE
AFFIRMED IN PART; MODIFIED IN
PART; REMANDED IN PART
Jennifer Linder, formerly Jennifer Johnson, appeals from an order changing custody
of her two children to their father, appellee Deron Johnson, and temporarily prohibiting her
from having contact with her children. She claims that the change of custody was not in the
children’s best interests, challenges the conclusions of the expert witness who recommended
that custody be changed, and asserts that the trial judge was biased. We affirm that portion
of the trial court’s order changing custody to Deron; modify that portion of the order
concerning Jennifer’s visitation; and remand for the trial court to prescribe supervised
visitation for Jennifer.
I. Factual Background
The parties in this case were divorced on December 23, 1998, and Jennifer was
awarded custody of their two children: Keith Johnson, d.o.b. 10/25/91, and Sky Johnson,
d.o.b. 10/21/93. Pursuant to the divorce decree, Deron was awarded standard visitation.
After the divorce, an extensive series of motions and counter-motions were filed by the
parties that culminated in the instant appeal.1 Although this appeal is based solely on the
order changing custody, it is helpful to review the relevant pleadings filed by the parties that
led to the order.
Approximately one month after the divorce, on January 24, 1999, Deron filed a
motion to modify the divorce decree and requested family psychological counseling. He
alleged that Jennifer moved from Cleburne County without prior notification and that she
failed to comply with that portion of the divorce decree ordering her to exchange meaningful
information with him regarding the children and to keep him timely apprised of their daily
activities. He objected to the move on the basis that he would not be able to exercise his
mid-week visitation. He also requested psychological counseling because Keith, then eight
years old, was displaying severe behavioral problems, such as physically attacking Deron,
telling Deron that he was not Keith’s father, and accusing Deron of stealing his toys and his
dog. Deron’s motion alleged similar behavior from Sky; stated that both children screamed
and cried when he attempted to pick them up for visitation; and asserted that Sky’s behavior
was strongly suggestive of coaching. Deron voluntarily dismissed this motion on November
1
This is the second appeal in this case. Previously, Jennifer successfully challenged
the trial court’s ruling (in the same order upon which the current appeal is based) that she was
in contempt of the court’s prior orders because she deliberately interfered with Deron’s
visitation. See Linder v. Weaver, 364 Ark. 319, __ S.W.3d. __ (2005).
2
8, 2001.
Beginning in September 2001, Jennifer and the children began receiving
psychological counseling from Dr. Bethel Thomas. The purpose of these visits was to help
the children cope with their fear of visitation. These sessions continued into 2003. A FINS
petition was filed by Susan Miles, a social worker who was counseling Deron, but the
petition was later dismissed.
On December 28, 2001, Deron filed another petition. That petition requested a change
in visitation, requested that Jennifer be held in contempt, and asserted that Jennifer had
“systematically ‘poisoned’ the children’s minds with unreasonable fears and erroneous
information about” him. He later filed an amended petition requesting a change of custody.
Jennifer responded with a petition to modify custody, which alleged that Deron’s lack of
parenting skills and actions toward the children had “engendered such fear that the children
are afraid of him; and that his visitation should be curtailed and should be supervised by a
mental health facilitator.”
Deron’s dismissal of his second petition was reflected in an order of continuance that
was entered on October 22, 2002. In this order, the trial court ordered the parties to
participate in counseling with a person other than the children’s current therapist, Dr.
Thomas, or Deron’s therapist, Sheldon Rappapport. The court further ordered all parties to
cooperate with and to follow the counselor’s recommendations. In addition, the court
appointed Jerry Grady as the guardian ad litem for the children. The court indicated that the
matter would be set for a final hearing upon notice of the parties or the ad litem.
3
Grady interviewed the children but spoke only briefly with Jennifer. Grady provided
a copy of her report to the court and to the attorneys of record, in which she recommended
continued, gradual visitation with Deron. Grady was discharged from the case on September
16, 2004. Jennifer subpoenaed Grady to appear at the hearing, but Grady filed a motion to
quash the subpoena, based on attorney-client privilege. The court agreed and quashed the
subpoena; Grady’s report was ultimately withdrawn by Deron and thus, was not relied upon
by the trial court.
An attorney was retained for the children but the trial court did not allow her to
participate in the proceedings. Jennifer thereafter filed a complaint against Judge Norman
Harkey, the trial judge, and the case was transferred to Judge Tim Weaver, over Jennifer’s
objection, on September 15, 2004.2
Deron filed a petition for contempt on November 18, 2004. That petition alleged that
Jennifer moved the children to Florida without prior consent of the court and without prior
notification to him. He also alleged that Jennifer’s “conduct is willful and malicious. She
has engaged in the pattern and practice of continually alienating [Deron] from his children.
This pattern of behavior has continued throughout the parties’ divorce and throughout this
proceeding.” He requested that Jennifer be incarcerated for her conduct.
Jennifer responded with a counter-petition for contempt and modification. She
2
Judge Weaver explained in a letter to the parties that the domestic-relations cases in
Cleburne County were divided between him and Judge Harkey. Therefore, if Judge Harkey
recused, Judge Weaver was the only judge left in that county authorized to hear a domesticrelations case.
4
requested that Deron be found in contempt for failure to pay child support and that his childsupport obligation be increased.
Before a hearing was conducted on those motions, the court ordered Deron, Jennifer,
and both children to undergo psychological testing with a court-appointed psychologist, Dr.
Paul DeYoub. Dr. DeYoub submitted to the court a report on his evaluations of all of the
parties and recommended that custody be changed to Deron, with supervised visitation for
Jennifer. In contrast, Dr. Thomas, who saw the family for a two-year period beginning
September 2001, recommended that custody be retained in Jennifer, with supervised
visitation for Deron.
The hearings on the parties’ motions were held on September 16, 2005, and
September 20-24, 2005. The trial court relied heavily on Dr. DeYoub’s conclusion that
Jennifer made the children believe that Deron had abused them, thus systematically alienating
the children from Deron. Immediately following the hearing, the trial court entered a handwritten order that transferred custody of the children to Deron and required the children to
be transported to Methodist Behavioral Hospital for immediate assessment and in-patient
care.
Another order was entered on October 5, 2005, in which the court determined that
Jennifer had “willfully and wantonly refused to comply with visitation,” and had “engaged
in a protracted campaign to alienate the children from [Deron] and to inculcate a hatred of
[Deron] in the minds of the minor children.” The court further found that Jennifer interfered
with Deron’s visitation by failing to communicate with him regarding visitation, by refusing
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visitation, and by asking him not to attend the children’s extra-curricular activities.
The court subsequently submitted a written order, stating that it was in the children’s
best interest to have custody immediately transferred to Deron; it again ordered the children
to remain in the Methodist Behavioral Hospital and to be placed in Deron’s custody upon
their release. The court also found both Jennifer and Deron in contempt, but determined that
Deron had purged himself of contempt by paying his delinquent child support. However, the
court ordered Jennifer to be incarcerated for one year, in part, for her “sustained campaign
of alienating the children.” The court further specified that after one year, Jennifer could
petition for supervised visitation. Jennifer previously successfully challenged the contempt
finding; thus, she now appeals solely from that portion of the trial court’s order changing
custody of the children and limiting her to supervised visitation.
II. Change of Custody
Jennifer argues that the change of custody was not in the children’s best interests
primarily by attacking the acceptability of Dr. DeYoub’s diagnosis of Parental Alienation
Syndrome and by comparing Dr. DeYoub’s conclusions with Dr. Thomas’s conclusions.
Relatedly, she argues that the move to Florida was in the children’s best interest. Finally, she
asserts that the trial judge was biased.
In reviewing a change of custody, we consider the evidence de novo, but will not
reverse a trial judge’s findings unless they are clearly erroneous or clearly against the
preponderance of the evidence. Inmon v. Heinley, 94 Ark. App. 40, __ S.W.3d. __ (2006).
We give due deference to the superior position of the trial court to view and judge the
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credibility of the witnesses. Id. This deference to the trial court is even greater in cases
involving child custody, as a heavier burden is placed on the trial judge to utilize to the
fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and
the best interest of the children. Id. Our law is well settled that the primary consideration
in child-custody cases is the welfare and best interest of the children; all other considerations
are secondary. Id.
A judicial award of custody should not be modified unless it is shown that there are
changed conditions that demonstrate that a modification of the decree is in the best interest
of the child, or when there is a showing of facts affecting the best interest of the child that
were either not presented to the trial court or were not known by the trial court at the time the
original custody order was entered. Id. Generally, courts impose more stringent standards
for modifications in custody than they do for initial determinations of custody. Id.
We affirm that portion of the trial court’s order changing custody to Deron, but
modify that portion of the order pertaining to visitation and remand for the trial court to
prescribe supervised visitation for Jennifer.
We address Jennifer’s first two arguments
together and hold that, on the record before us, the trial court was amply justified in granting
Deron’s motion to change custody, based on Dr. DeYoub’s findings and other testimony.
The cumulative evidence demonstrates that Jennifer engaged in an unjustified, deliberate,
pervasive pattern of conduct aimed at alienating her children from their father and that her
conduct had the intended effect. As such, the trial judge was justified in concluding that the
move to Florida was not in the children’s best interests but was merely part of Jennifer’s
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scheme to deprive Deron of visitation and to further alienate the children from him. The trial
judge was also justified in ordering the children to be immediately transported to the
Methodist Behavioral Hospital and to prohibit Jennifer, at that point, from having contact
with her children. Finally, we do not consider Jennifer’s bias argument because it was not
raised below.
The testimony in this case is voluminous and, in many respects, is what one would
ordinarily expect to hear in a child-custody case. Each parent remarried. Jennifer married
Billy Cockrill in August 1999 but they apparently divorced in late 2000. Deron married his
current wife, Amber, in March 2001; her son, Preston, who is two years younger than Sky,
and their son, Landon, born in June 2001, also lives with them.
Each side presented evidence that each parent was a fit parent, loved the children, was
financially able to provide for the children, etc. Jennifer presented testimony to establish that
she did not interfere with visitation and, to the contrary, that she encouraged visitation, but
that Deron did not attempt to regularly exercise visitation. Deron presented contrary
evidence that he attempted to exercise visitation, but was thwarted because Jennifer was
difficult to contact, consistently asserted that she or the children had scheduling conflicts
with the visitation, and moved out of the county and even out of state without informing
Deron.
Nonetheless, this case is unusual in that the facts present what seems to be a Hobson’s
choice for the trial court: either the children have been abused by their father or their mother
has convinced the children that they have been abused by their father. The abuse that
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Jennifer alleged can be summarized as follows:
1)
Deron whipped the children with a “spiked ping-pong paddle”;
2)
Deron’s mother locked the children out of her house for hours during the rain,
causing the children to be covered in ticks, which were not properly removed;
3)
The children were not fed while in Deron’s or his parents’ care;
4)
The children were placed in time out for excessive periods of time; Sky was
placed in time-out so long that she urinated on herself;
5)
According to their “punishment chart,” the children were spanked “six times”
for refusing to call Deron “dad”;
6)
Deron grabbed Keith by the ear so hard that it left “a hole” in Keith’s ear;
7)
Deron’s wife, Amber, struck Keith in the face with her cell phone;
8)
Deron and his parents threatened to have the children locked up in a mental
hospital;
9)
Amber’s six-year old son, Preston, attempted to touch Sky under her clothes,
but Deron and Amber did not attempt to stop him; Keith stopped him and was
punished for it; and
10)
During one visitation exchange, Deron brought along a social worker, Susan
Miles, who got into the car with the children and attempted to “deprogram” the
children by chanting things like, “Johnson, Johnson, your name is Johnson”
and “Deron is your father”; the children were told their mother was going to
jail; Deron forcibly removed the children from the car and carried them to his
parents’s house; and the children were physically restrained during the entire
two-hour visit to prevent them from leaving, which left bruises and red marks
on them.
Not only was abuse alleged by Jennifer, but it was also alleged by the children, who
testified against their father. Nonetheless, this case simply turns on the credibility of the
witnesses and whether the trial court erred in relying on Dr. DeYoub’s conclusions instead
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of Dr. Thomas’s. We hold that the trial court did not err in relying on Dr. DeYoub’s
conclusions.
A. Dr. DeYoub’s Recommendation
Dr. DeYoub met with Deron three times, for a total of six hours; met with Jennifer
two times, for a total of eight hours; met with Keith one time, for a total of two hours; met
with Sky one time, for a total of two hours; and met with Deron’s wife one time, for a total
of one-and-one-half hours. These totals do not include the time spent conducting diagnostic
evaluations. Although Dr. DeYoub met with the parties for a briefer period than Dr. Thomas
did, the statements to Dr. DeYoub made by the children and Jennifer support his conclusion
that Jennifer deliberately and successfully alienated her children from Deron. Based on those
statements, Dr. DeYoub concluded that this case was “an egregious” case of parental
alienation.3
Because Dr. DeYoub concluded that Jennifer projected her sense of rejection onto the
children “from the minute the marriage ended,” it is helpful to examine the circumstances of
the parties’ separation. Keith was six and Sky was four when the parties separated.
Unsurprisingly, Jennifer and Deron gave different versions of why they separated. Deron
3
Much of the testimony and much of the parties’ arguments are devoted to establishing
or discrediting Dr. DeYoub’s theory of Parental Alienation Syndrome. We do not address
the acceptability of this theory as a diagnostic theory. Nor do we base our decision on Dr.
DeYoub’s conclusion that the children were alienated from their father based on this theory.
Rather, we are convinced that Dr. DeYoub’s conclusions regarding the parties’ behavior are
consistent with the statements the parties gave to Dr. DeYoub and the testimony offered at
the hearings.
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testified that he was feeling stressed and wanted to go for a drive. He told Jennifer that he
would be back in a while; she told him to be back in thirty minutes. Deron said that when
he returned an hour later, Jennifer met him at the front door; informed him that he had not
returned in thirty minutes as she had insisted, and told him, in front of the children, that he
could find another place to live. Deron said the children were beating on the front door,
crying and yelling, and wanted out.
Jennifer, on the other hand, said that she and Deron had just returned from their
overnight, second honeymoon after renewing their wedding vows, and that Deron went to
the airport for a flying lesson. She was upset because she felt he should want to spend time
with the children after being apart from them for one day. According to her, Deron did not
return home and did not call until four days later. She said that she begged him to come
home and did not lock him out. However, Keith offered yet another version of the story –
he said that Jennifer told the children they were divorcing because Deron had an affair with
the children’s babysitter.
There is clear and convincing evidence that Jennifer attempted to thwart visitation and
keep the children from their father beginning with the children’s first visit following the
separation. Dr. DeYoub found it “critical” that Jennifer was unable to explain why the
children resisted visitation from the first visit with Deron, which, according to Jennifer, was
preceded by the children screaming so loudly that the neighbors wondered whether to call
the police. This is quite telling in light of the fact that Jennifer admitted Deron had a good
relationship with Keith during the parties’ marriage; that she did not specifically allege that
11
any abuse took place during the marriage; and, in fact, did not specifically allege child abuse
in her pleadings until August 2005, in her responses to Deron’s motion for contempt.
As Dr. DeYoub noted, it is normal for any child with separated parents to have mixed
feelings about visiting the noncustodial parent. However, even if Deron, in theory, began
abusing the children at the earliest opportunity – during the first visit – there would be no
apparent reason for the children to be intensely predisposed against seeing him on the
exchange for that visit – except that, according to Deron, on the first visit, the children told
him that Jennifer had told them he would kidnap them and would not bring them back; and
that he would take their toys and their clothes.
Deron told Dr. DeYoub that the visitations themselves were “pretty normal” but that
the exchanges continually worsened, as it would take longer and longer to convince the
children to come with him. The children would refuse, would cry, would tell him they hated
him, and sometimes, would hit him. He maintained that Jennifer never encouraged visitation
and refused to correct the children’s behavior during the exchanges. During the last visit in
November 2004 (after the children moved to Florida), Deron said that the children “had a
stone cold face” and were disengaged and negative. After approximately fifteen minutes,
Keith called Jennifer to come get them. Dr. DeYoub concluded that “everything regarding
the children’s demeanor Mr. Johnson reports is credible because I have seen the children, and
know that these reports are consistent with their psychological functioning.”
Deron testified that Jennifer was difficult to contact; that she consistently alleged
scheduling conflicts; and that she moved out of county and out of state without notifying him.
12
After the children moved to Florida, Deron’s telephone calls went unanswered; he did not
know where the children were and did not see them for nearly one year. Deron also related
an incident that took place during earlier visitation in which Sky wanted to spend an extra
weekend with him, but when he asked Jennifer about it, she raised her voice to Sky,
demanding, “Do you want to see your dad?” Sky’s response was to hold her head down;
Jennifer responded, “I told you.”
Deron told Dr. DeYoub that visitation reached a “pivotal point” after his son, Landon,
was born in June 2001. At this point, Keith was almost ten and Sky was nearly eight. By
September 2001, Jennifer had openly stated (as she admitted to Dr. DeYoub) that she was
not going to make the children see Deron anymore.
In addition, Jennifer admitted that she told the children’s school not to call Deron in
case of an emergency and that she told Deron not to come to school. She also told Dr.
DeYoub that the children chose to call Deron by his name, instead of “dad,” and that the
children made that choice independently, at ages four and six, when their parents separated.
Dr. DeYoub noted that Jennifer “seems to think it is perfectly natural for them to make a
decision like that.”
The children also used the name “Linder” at school, instead of
“Johnson.” Jennifer insisted that she discouraged the children from informally changing their
name from Johnson to Linder; yet, Keith told Dr. DeYoub that, approximately one month
after the separation, Jennifer told him she would not discipline him for not calling Deron
“dad.”
The statements Keith and Sky made to Dr. DeYoub also support that Jennifer
13
alienated them from their father.
The children were interviewed by Dr. DeYoub on
September 7, 2005; the last time they had seen Deron was in November 2004, for the fifteenminute visitation previously noted. Keith was nearly fourteen years old when his evaluation
was conducted; Sky was nearly twelve. Each child expressed the desire to have no further
contact with their father, expressed unequivocal animosity toward Amber and Deron’s
parents, and expressed no interest in seeing Landon, their half-brother (who was four years
old at the time of Dr. DeYoub’s assessment).
Referring to Deron getting custody, Keith began the interview with Dr. DeYoub by
saying, “I’m hoping he doesn’t get it with all my heart.” Keith described Deron as having
no feelings or emotions for anyone; he believed that Deron feels he can do anything to
anyone. Keith also said that Deron cannot think for himself and that Deron’s parents are
“calling the shots.” He also said that Deron could kill someone and not worry about it. Keith
stated that Deron is “killing” Keith’s maternal grandparents with the custody case. Keith said
that he would rather be in a mental hospital or foster care than in Deron’s custody.
Dr. DeYoub described Sky as tearful and emotional during her interview. Sky
corrected the doctor when he referred to Deron as “her father,” stating that she would rather
call him “Deron.” She said that she and Keith begged her mother to move to Florida and that
she felt “normal” in Florida because she did not have to worry about visitation. She said that
during the Miles incident, Miles slapped her and that while her grandfather held her, she
screamed so much that her throat bled; however, neither of these allegations were reported
to the police.
14
Sky said that she and Keith had to convince Jennifer that they were being abused; and
that Jennifer called the Arkansas Department of Human Services (ADHS) and the childabuse hotline but received no response. Sky told Dr. DeYoub that she did not want to go to
her father’s wedding, but she had to go because he got a court order. She told Dr. DeYoub
that the “happy” pictures taken while in Deron’s custody are fake; she testified that she and
Keith were often whipped before pictures were taken to assure that they appeared to be
happy. Sky also said that Amber encouraged Deron to whip them.
Like Keith, Sky maintained that Jennifer never obstructed visitation. When Dr.
DeYoub asked Jennifer if she moved to Florida to avoid the court case, she did not deny it,
but justified the move by stating that all of Cleburne County was against her.4 Keith reported
to Dr. DeYoub that they decided to moved to Florida “after the last court” and that Jennifer’s
lawyer told her to look for a job in Florida. While Jennifer testified at trial that she was
unsure of the visitation requirements while she was in Florida, her second husband, Cockrill,
testified that Jennifer was in touch with her lawyer while she lived in Florida and that her
lawyer advised her to arrange visitation and warned her that she would be in trouble with the
court if she did not. Remarkably, both children indicated that they would not have talked to
Deron on the phone if he had called them while they were in Florida.
Both children expressed fear for their lives and threatened to run away if Deron was
4
Jennifer maintains that there is a conspiracy in Cleburne County against her involving
Judge Harkey, Judge Weaver, the police department, Susan Miles, Jerry Grady, and even
Jennifer’s former attorney. Dr. DeYoub noted that not only do the children recite “chapter
and verse” the abuse allegations but they are also well-versed in Jennifer’s conspiracy theory.
15
awarded custody. Dr. DeYoub, while recognizing that Deron was not a perfect parent, found
the allegations of abuse to be “preposterous.” He did not discount the children’s threats of
running away but noted that if they did so, then Deron would be required to seek help for
them.
Dr. DeYoub further explained that the children saw no redeeming characteristics in
Deron or his family. The doctor found the children’s complete animosity and lack of
ambivalence toward their father as “unnatural, if not absurd.” Although belied by the
children’s testimony at trial and the photographs admitted into evidence, the children
expressed to Dr. DeYoub that they never had any good times while in Deron’s custody and
that they desired to have absolutely no contact with Deron or his family, including their own
half-brother, Landon. Dr. DeYoub stated that the children’s lack of interest in their own
brother (who is completely blameless) is another example of how the children have been
alienated from their father.
The doctor also observed that “[b]oth children assert with great pride that their
decision to reject [Deron] is their decision alone.” Dr. DeYoub further stated in his report
that “The three, both children and the mother, use the same language and scenarios reflecting
the same terminology that they all have in common . . . [t]he mother and children do not
respond to reason.” For example, Keith asserted, as did Jennifer, that Deron’s father-in-law,
a deputy sheriff, was unfairly involved in the case; that Judge Harkey had appointed his “best
friend,” Judge Weaver; and that the ad litem was unfair and named Jennifer as an abuser
(which the ad litem did not do). Dr. DeYoub felt that Keith’s statement that Deron’s parents
16
are calling the shots were “adult statements from his mother.” He also noted that in
remarking about Deron’s father-in-law, Keith “did not miss a beat in relating everything his
mother did.”
Dr. DeYoub reviewed the transcript of a secret audiotape of the children’s visit with
Deron and his parents made by Sky and concluded that the children were highly disrespectful
of Deron, Amber, and Deron’s parents.5 Dr. DeYoub noted:
The father and the grandfather, in spite of the mother’s own account of this incident,
were in my view, making every reasonable attempt to convince the children they
loved them and they wanted to visit with them and even live with them. It is true they
accused the father of abusing them, but the father has reason to believe that the
mother is coercing the children against the visitation. The transcript shows the
children to be completely irrational regarding the visitation and the reason for their
refusal. Yet, the mother thinks the children are engaging in rational thought and she
is harming them by her refusal to over the last seven years to challenge their
erroneous thinking. . . . She is paranoid, she believes everyone is against her, she files
charges against everyone who challenges her, and she is a covert aggressive who
portrays herself as victimized and misunderstood along with her children. . . .
(Emphasis added.)
With regard to the children being coached, DeYoub noted that:
[T]he children cite chapter and verse consistent with the mother’s allegation, children
who were 4 and 6 years of age at the time the separation occurred, who apparently are
demonstrating incredible memories beyond what any child this age is developmentally
capable of. The reason they have such a photographic memory for these events is that
they are not remembering the event itself, but countless replays and rehashing of
exaggerated trauma.
(Emphasis added.) The doctor further stated that the children “are both extremely protective
of their mother to the point of pathology. She does no wrong and when I asked these
5
We did not find this audiotape or transcript in the record.
17
children how they are disciplined by their mother, they said they are not.”
Dr. DeYoub concluded that Jennifer “has very significant histrionic, narcissistic, and
paranoid personality traits”; that she is ready to “see herself” as a martyr because she
indicated to the doctor several times that she would not cooperate with forced visitation, even
if the court ordered it. He said that Jennifer denies any responsibility for the problems in the
marriage, divorce, or the problems that arose subsequent to the divorce. Dr. DeYoub said
that
[s]he sees herself as flawless, a victim of her ex-spouse, and with a more mature
defensive structure, she would see her history in this marriage as a more reasonable
way with less need to deny any responsibility. . . . She sees her decision not to require
her children to have visitation as a virtue, rather than a disorder. She has absolutely
no insight, and I mean zero, regarding her contribution to this problem. She thinks
the only mistake she ever made was supporting the visitation.
(Emphasis added.)
Deron’s diagnostic scores indicated to Dr. DeYoub that Deron was less defensive,
more forthright, and overall, that he did not project any significant emotional problems. Dr.
DeYoub found Amber to be an honest woman and he did not believe that she was abusive
toward the children. Dr. DeYoub recommended that custody be changed to Deron, with
supervised visitation for Jennifer.
B. Dr. Thomas’s Recommendation
Dr. Thomas met with the various family members over a two-year period, beginning
in September 2001. In sharp contrast to Dr. DeYoub, he believed the children’s allegations
of physical and psychological abuse and did not believe the children were coached; he did
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acknowledge that the children’s descriptions of the abuse, such as the spiked ping-pong
paddle and Deron causing a hole in Keith’s ear, may have been exaggerated. Dr. Thomas
stated that the threat the children felt from their father “was very real to them” and that it
would take a “very intentional, conscious, systematic effort at reducing that fear.”
Dr. Thomas admitted that his purpose in meeting with the family was not to make a
clinical judgment about Jennifer and that he did not diagnose her. He testified that the
purpose of his visits was to help the children cope with their fear of visitation. He also
testified that he was baffled by the fact that the children had been frightened from the early
visitation phase. In contrast to the entire family’s testimony, Dr. Thomas did not believe that
the children’s negative and fearful attitude manifested until the second visitation, during
which the allegations were made that the children were locked out of their grandparents’
house. His impression was that Jennifer had encouraged visitation and had reacted as any
parent would “who has been fighting for her children.” He believed that the children’s
protection of Jennifer was normal but did not feel that their “all or nothing” attitude toward
their father was unusual.
Dr. Thomas read Dr. DeYoub’s report. He was “shocked” that Dr. DeYoub had
reached the conclusions that he had reached after meeting with them for such a limited time.
Dr. Thomas felt that Dr. DeYoub was “biased against the expression of the children and the
mother” and was too quick to label the situation as one involving parental alienation
syndrome, which, in Dr. Thomas’s opinion, is not a “recognized diagnostic syndrome.” He
recommended that the children remain in Jennifer’s custody with “reasonable visitation” for
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Deron, if such visitation could be accomplished in such a way that it would not traumatize
the children. He flatly stated that changing custody to Deron “would be the worse thing that
could happen for the children.”
C. Analysis
We hold that the trial court did not err in relying on Dr. DeYoub’s opinion rather than
Dr. Thomas’s. Although Dr. DeYoub spent considerably less time with Jennifer and her
children, unlike Dr. Thomas, Dr. DeYoub did interview Jennifer and perform diagnostic tests
on her with the intent of diagnosing Jennifer and the children. Further, the statements of
Jennifer and her children to Dr. DeYoub support Dr. DeYoub’s conclusion that Jennifer
alienated the children from Deron from the first visitation. The evidence supports that the
children’s allegations match the mother’s allegations because the children have been coached
by their mother. The children’s telling testimony at the hearing was essentially consistent
with the statements they made to Dr. DeYoub. However, at the hearing, Jennifer largely
denied that she made similar statements to DeYoub or asserted that he misrepresented what
she said – presumably because her statements to him amply demonstrate how she alienated
her children from their father.
Further, to reverse based on Jennifer’s allegations would require us to believe what
the trial judge did not believe – that Jennifer encouraged visitation despite the children’s
allegations of abuse and that she reported the abuse but that the police and ADHS were
unresponsive because of the conspiracy against her in Cleburne County. Jennifer stated that
she could not “blow off” that her children were being abused, yet she insisted that she had
20
an “open-door” policy and that Deron could come get the children at any time and take them
anywhere they wanted to go, except to his home. The existence of such an “open-door
policy” defies belief where the mother also maintains that her ex-spouse is horrifically
abusing the children.
Dr. Thomas, too, recognized that something “systematic” was being worked on the
children, although he believed the source to be Deron, and not Jennifer. He stated: “It was
a systematic . . . breaking of trust with the children, systematic uncertainty, a systematic sort
of punishing response as opposed to what I would consider a loving and caring response.”
Yet, even Dr. Thomas believed that, despite the children’s descriptions of visitation,
they had positive experiences with their father. Dr. Thomas recognized that the children
were reluctant to show a lot of excitement about anything that happened with Deron,
“because they felt like it would be used against them” – more evidence that the children had
been coerced into denying that they wanted visitation with their father.
To be sure, Deron and his parents have not acted in an exemplary manner.
Regrettably, the “deprogramming incident” did occur; the parties differ with regard to their
opinion as to the nature of the conduct involved and the degree to which the children were
harmed.6 Nonetheless, even this incident supports that the children were coached into
6
Jennifer and the children testified that, during this incident, at Miles’s continual
direction, Deron forcibly removed the children from the car and that he and his father
physically restrained them by holding them in their laps during the two-hour visitation to
keep the children from running away. This testimony contradicts the children’s other
assertions that they were taken from room to room and told things like, “this is your room,
this is your home.”
21
exaggerating or lying about actual events.
After the incident, Jennifer contacted Mark Holland, a Highway Patrol Officer whom
she knew, because she had telephoned the Cleburne County Sheriff’s Department before and
felt that their response had been unsatisfactory. It is notable that Officer Holland, a twelveyear police veteran whom Jennifer trusted enough to call, expressly testified that he believed
that the children were coached. He thought it was “unusual” because when he would ask
them a question, “they would go into their thought process, thinking about what to answer
to me, their faces would literally contort, as if they’re just really thinking about what they
need to say, or what to say.” Officer Holland said that when he asked Sky a question, she
looked to Keith “as if for guidance.” He characterized the children’s behavior as “strange”;
said that they told him things he knew to be “untrue” or “totally ridiculous,” and said that
they became “agitated” at the mention of Deron’s name.
While this incident is inexcusable and probably frightened the children, there was no
evidence that they suffered lasting harm. Rather, it appears to be an isolated incident which,
absent additional credible evidence, does not support reversal. To the contrary, the testimony
of the officer supports that, as with the other allegations of abuse, the children were coached
into fabricating allegations or exaggerating the actual events.
On these facts, we agree that custody should be changed to the father. Dr. DeYoub
The investigating officer indicated that the children had red marks and bruising on
their bodies, which he described as not “aggressive” and that he rated as a “2” on a scale of
“10.” The mild bruising was apparently the result of the children resisting when their father
tried to remove them from the vehicle and being restrained during the visitation.
22
determined that Jennifer completely alienated Sky and Keith from Deron; that custody should
be changed to Deron; and that Jennifer should have supervised visitation. He based his
conclusion, in part, on research showing that children who had been completely alienated
from their parents tend to remain completely alienated unless their access to the restricting
parent is reduced or eliminated. Thus, the trial court was justified in changing custody to
Deron, the alienated parent, and in temporarily restricting the children’s access to Jennifer,
the parent who caused the alienation. The trial court was not required to ignore Dr.
DeYoub’s report, the harm Jennifer has inflicted on her children, Jennifer’s express intent
to continue to violate the trial court’s orders, and her skewed view of the events in this case.
Accordingly, we affirm that portion of the trial court’s order changing custody to Deron.
However, because of the time that has elapsed since the trial court’s order has been
entered, we modify that portion of the trial court’s order relating to visitation and instruct the
trial court on remand to prescribe supervised visitation for Jennifer. In so doing, we
encourage the trial court to condition the mother’s right to supervised visitation on evidence
that she is actively engaged in psychological counseling and is demonstrating that she is not
continuing in her paranoid tendencies that produced the ill effects in this case. We leave it
to the trial court’s discretion to determine whether to award Jennifer unsupervised visitation
at some future point.
Finally, we readily dismiss Jennifer’s argument that the trial judge, Judge Weaver, was
biased. Jennifer admits that she is not questioning whether Judge Weaver should have
recused from the case but maintains that she is attempting to show that his evaluation of the
23
credibility of the witnesses was impaired, as demonstrated by the manner in which he
questioned her witnesses, and by the fact that he quashed the subpoena for Grady, the ad
litem. Regardless, Jennifer did not below assert that Judge Weaver questioned the witnesses
in a biased manner or otherwise handled the case in a biased manner. Therefore, she is now
precluded from making such an argument for the first time on appeal.7
Affirmed in part; modified in part; remanded in part.
G LOVER, J., agrees.
P ITTMAN, C.J., concurs without opinion.
7
Jennifer’s assertion that the Judge Weaver is biased because he was prepared to
change custody before she presented her case evinces her lack of understanding of
evidentiary procedure, rather than bias on the part of the trial judge. Judge Weaver denied
her motion to dismiss, which was necessarily filed before Jennifer presented her evidence,
merely stating that DeYoub’s testimony demonstrated a change of circumstances. He
thereafter considered her evidence before determining whether the change of circumstances
warranted a change of custody. Further, any arguments that Judge Weaver exhibited bias in
not allowing Jennifer to question the ad litem is also without merit because the ad litem’s
report was withdrawn by Deron and thus, was not part of the evidence in this case. Finally,
our review of the record reveals that there was nothing improper in the manner in which
Judge Weaver questioned the witnesses.
24
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