In re Marcell W. ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 20, 2015
IN RE MARCELL W.
Appeal from the Circuit Court for Shelby County
No. CT00521313 Robert Samual Weiss, Judge
________________________________
No. W2014-02120-COA-R3-CV – Filed July 16, 2015
_________________________________
This appeal results from a dependency and neglect action initiated in the Shelby County
Juvenile Court. The juvenile court found that the child was dependent and neglected. The
juvenile court also found that the child‟s severe injuries constituted severe child abuse
perpetrated by the child‟s mother. On appeal, the circuit court affirmed. Discerning no error,
we also affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the Court, in which ARNOLD B.
GOLDIN, J., joined in part, and BRANDON O. GIBSON, J., joined in part; ARNOLD B. GOLDIN,
J., filed a concurring opinion in which BRANDON O. GIBSON, J., joined.
Reginald E. Shelton, Memphis, Tennessee, for the appellant, Michelle W.
Herbert H. Slatery, III, Attorney General and Reporter; Ryan L. McGehee, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children’s Services.
OPINION
Background
On September 3, 2012, the child at issue, Marcell W.1 (“the child” or “Marcell”),
1
In cases involving dependency and neglect, it is this Court‟s policy to initialize the last names of the
parties to protect the identities of the children involved.
presented at LeBonheur Children‟s Hospital (“LeBonheur”). The child‟s mother, Michelle
W. (“Mother”) informed LeBonheur‟s staff that the child was not acting normally. Upon
examination, doctors discovered that, among other issues, the child was bleeding in his brain
and a liver laceration. The child was approximately five months old at the time. No
explanation was given by Mother as to the cause of these injuries. Accordingly, on
September 4, 2012, LeBonheur made a referral to the Tennessee Department of Children‟s
Services (“DCS”) regarding the child. The referral indicated that the perpetrator was
unknown.
Juvenile Court Proceedings
On September 14, 2012, while the child remained at LeBonheur, DCS filed a petition
in the Shelby County Juvenile Court to adjudicate the child dependent and neglected and the
victim of severe abuse. The petition alleged that the child presented to LeBonheur with a
right subdural hematoma,2 elevated liver function, a right-lobe liver laceration, a buckle
fracture on the left wrist, and bilateral retinal hemorrhages.3 According to the petition, the
only explanation Mother gave for the injuries to the child was that the child may have hit his
head while sleeping next to a wall. The petition further alleged that after a Child and Family
Team meeting was held with Mother, the team agreed that returning the child to the home
was not in the child‟s best interests. Although a relative placement was explored, no relative
placement was subsequently approved. Accordingly, DCS recommended that temporary
custody of the child be awarded to DCS. The child was ultimately placed in a foster home.
Finally, because of the severe injuries to the child, DCS asked that the juvenile court find that
Mother committed severe abuse of the child.
On September 14, 2012,4 Magistrate Herbert J. Lane, acting as Special Judge, signed a
protective custody order temporarily vesting custody of the child with DCS. The order further
directed that a guardian ad litem would be appointed for the child, “consider[ed] the need to
2
A subdural hematoma is defined as “an accumulation of blood in the subdural space, usually caused
by an injury.” Mosby’s Medical, Nursing, and Allied Health Dictionary 1557 (5th ed. 1998). The subdural
space refers to an area around the brain. See id. at 120, 522, 1557.
3
A retinal hemorrhage is the “loss of a large amount of blood in a short period” of the eye. Mosby’s
Medical, Nursing, and Allied Health Dictionary at 749, 1413.
4
The dates contained in the record for many of the proceedings are unclear. While many orders appear
to have been signed by the magistrate or judge promptly after hearings, many orders were not entered until
weeks or months later. For example, although the protective custody order was signed on September 14, 2012,
it was not stamp-filed until July 31, 2013. This practice causes needless confusion.
2
appoint counsel” for the child‟s parents,5 and set a preliminary hearing for September 29,
2012. Juvenile Judge Curtis Person (“juvenile judge”) subsequently appointed counsel for
Mother and a guardian ad litem for the child.
On October 25, 2012, an order was entered containing the findings and
recommendations of Magistrate David S. Walker with regard to the preliminary hearing.
Specifically, Magistrate Walker ruled that the protective custody order should remain in
effect pending a final hearing, that because of the child‟s injuries, it was not reasonable to
make efforts to maintain the child in the home, and that no less drastic alternative existed to
placing the child in DCS custody. Accordingly, Magistrate Walker ruled that the child should
remain in DCS custody pending a final hearing. The juvenile judge subsequently adopted the
findings and recommendations of Magistrate Walker.
On January 30, 2013, Juvenile Magistrate Felicia M. Hogan entered an order
continuing the current placement of the child and ratifying a permanency plan for the child.
The permanency plan included the goals of return to parent and/or adoption. The order
further stated that Mother was fully compliant with the existing permanency plan. The
juvenile judge subsequently adopted the findings and recommendations of Magistrate Hogan.
The dependency and neglect action was heard on April 2, 2013, by Magistrate Hogan.6
Magistrate Hogan entered an order containing findings and recommendations on April 25,
2013. Specifically, Magistrate Hogan ruled that the petition to adjudicate the child dependent
and neglected should be sustained due to clear and convincing evidence that the child was a
victim of severe abuse committed by Mother. The magistrate‟s findings were adopted,
ratified, and confirmed by the juvenile court judge. On April 9, 2013, Mother filed a request
for a rehearing before the juvenile judge. On the same day, the juvenile judge entered an
order permitting a rehearing.
A rehearing was scheduled to occur on July 8, 2013. On July 31, 2013, an order was
entered by Magistrate Dan H. Michael, which indicated that he had been appointed as Special
Judge to preside over the rehearing because the judge found it necessary to be absent from
holding court pursuant to Tennessee Code Annotated Section 17-2-122(b).7 Special Judge
5
Although the proceedings in the juvenile court also concerned the child‟s father, he has not
participated in any proceedings concerning the child. Accordingly, we only consider the facts as they relate to
Mother in this case.
6
No transcript or statement of the evidence is included in the record on appeal from this hearing.
7
Tennessee Code Annotated Section 17-2-122(b) provides:
Sections 16-15-209 [concerning the duty to interchange] and 17-2-
109 [concerning the supreme court‟s ability to assign a retired judge to quell
3
Michael continued the hearing to September 23, 2013 at Mother‟s request. On September 18,
2013, Mother filed a motion for pre-trial discovery. On the same day, Mother filed a motion
in limine to exclude: (1) all evidence that was not submitted to her in discovery; (2) all
testimony regarding matters not alleged in the petition; and (3) to limit the testimony of
DCS‟s expert to only “the nature and extent of the injuries suffered” by the child, specifically
excluding any testimony regarding causation or culpability. On September 20, 2013,
Magistrate Hogan ratified another permanency plan for the child. This plan contained the
goals of permanent guardianship and/or adoption.
Ultimately, the rehearing of the dependency and neglect finding occurred on
September 23, 2013.8 Present at the hearing were Mother, the child‟s guardian ad litem,
representatives from DCS, and Deborah V. (“Foster Mother”), the child‟s foster parent.
Again, Special Judge Michael presided over the cause, as the juvenile judge found it
necessary to be absent from holding court.9 In its November 27, 2013 ruling, the Special
Judge confirmed the magistrate‟s ruling that clear and convincing evidence existed to support
a finding of both dependency and neglect and severe abuse. The Special Judge also changed
the permanency plan to reflect a goal of adoption only. Accordingly, the Special Judge
ordered that the child be placed in the legal custody of Foster Mother. Mother filed a timely
notice of appeal to the Shelby County Circuit Court (“the circuit court” or “the trial court”).
Proceedings in the Circuit Court
After the appeal of the matter to circuit court, on January 31, 2014, DCS filed an
emergency petition to correct the Special Judge‟s order. Specifically, DCS alleged that
although the Special Judge‟s order directed that legal custody of the child be placed with
congestion or delay in the disposition of litigation] and any other relevant
provision shall not apply where a judge finds it necessary to be absent from
holding court and appoints as a substitute judge an officer of the judicial
system under the judge‟s supervision whose duty it is to perform judicial
functions, such as a juvenile magistrate, a child support magistrate or clerk
and master, who is a licensed attorney in good standing with the Tennessee
supreme court. The judicial officer shall only serve as special judge in
matters related to their duties as judicial officer.
The record contains no order entered by the juvenile judge specifically appointing Magistrate Michael as
special judge.
8
Only a portion of the transcript of this hearing is contained the record, which portion contains Special
Judge Michael‟s oral ruling.
9
Again, the record contains no order entered by the juvenile judge specifically appointing Magistrate
Michael as special judge.
4
Foster Mother, the Special Judge ruled from the bench that the child would remain in the
custody of DCS pending adoption proceedings. DCS argued that removing the child from
DCS custody had significant ramifications, as the foster parents would no longer be eligible
to receive financial support to meet the child‟s medical needs. Accordingly, DCS requested
that the matter be remanded back to the juvenile court for correction of the order.
On January 31, 2014, a consent order was entered allowing this cause to be remanded
back to the juvenile court to correct the error in the November 27, 2013 order. On March 26,
2014, an order of correction was entered in juvenile court returning legal custody of the child
to DCS.
On March 28, 2014, David R. and LaChundia R. (together, “Intervening Relatives”)
filed a motion to intervene in the proceedings and to stay the magistrate‟s ruling with regard
to the changed permanency plan goal. Specifically, Intervening Relatives alleged that they
were maternal cousins of the child who had been cooperating with DCS to serve as a relative
placement for the child. According to Intervening Relatives, they had recently completed
classes to be recognized as foster parents by DCS and had been attending meetings and
doctor‟s appointments on behalf of the minor child. Intervening Relatives were allegedly
approved as a resource parent home on September 25, 2013. Intervening Relatives argued
that they were being unlawfully denied the opportunity promised them by DCS to parent the
child. In their motion, Intervening Relatives stated that a Child and Family Team meeting
took place on August 27, 2013, wherein the team agreed to place the child with Intervening
Relatives pending their approval as a foster home. According to Intervening Relatives, the
Special Judge at the rehearing on September 23, 2013 impermissibly changed the goal
contained in the permanency plan to adoption without prior notice to the parties and in
violation of Tennessee Code Annotated Section 37-2-403. Attached to their motion was a
copy of a drafted permanency plan that indicated that placing the child with Intervening
Relatives was the goal.
On April 4, 2014, Mark V. and Foster Mother (together, “Foster Parents”) filed a
motion to intervene. Foster Parents alleged that they were the current foster parents to the
child and that the child had been placed with them since September 2012, a period of over
eighteen months. Foster Parents filed their motion to intervene in order to respond in
opposition to Intervening Relatives‟ motion concerning the alteration of the goal in the
child‟s permanency plan. According to Foster Parents, they wished to adopt the child and had
been recently informed that DCS would support their request.
On June 6, 2014, the child‟s guardian ad litem filed a response to Intervening
Relatives‟ motion. The child‟s guardian ad litem generally supported Intervening Relatives‟
requests and argued that DCS was required to place the child with relatives. Further, the
5
guardian ad litem argued that DCS failed to make reasonable efforts to reunify the child and
Mother.
DCS likewise filed a response to Intervening Relatives‟ motion on June 23, 2014.
DCS did not dispute that Intervening Relatives had involvement with the child and his plan
of care or that they undertook to become foster parents for the child. However, DCS argued
that it had no duty to ensure a relative placement for the child after the child had already been
in foster care for nine months at the time Intervening Relatives came forward to care for the
child. Further, DCS denied that the change in the permanency plan violated Tennessee Code
Annotated Section 37-2-403. DCS also argued that the permanency plan attached to
Intervening Relatives‟ motion was not binding, as it had never been ratified by the juvenile
court. Finally, DCS argued that because Intervening Relatives were not parties to the juvenile
court proceedings, “it is too late for Intervening Relatives to intervene . . . at this stage in the
proceedings.”
Also on June 23, 2014, DCS filed a response to the Foster Parents‟ motion to
intervene, generally agreeing that Foster Parents should be allowed to intervene as pre-
adoptive parents. On June 26, 2014, Mother filed a response to Intervening Relatives‟ motion
to intervene, generally agreeing with the allegations contained in Intervening Relatives‟
motion. Specifically, Mother alleged that she had no notice that the permanency plan goal
would be changed at the September 23, 2013, hearing. Accordingly, Mother asked that the
circuit court stay the order of the juvenile court and restore the goal of relative placement to
the child‟s permanency plan. Finally, on June 27, 2014, Mother filed a response in opposition
to the Foster Parents‟ motion to intervene.
The circuit court granted the Intervening Relatives‟ motion to intervene on August 11,
2014. Foster Parents were also permitted to intervene by order of August 14, 2014. On
August 13, 2014, Intervening Relatives filed an amended motion for stay of the magistrate‟s
ruling regarding the permanency plan. In addition to their prior arguments, Intervening
Relatives also argued that the Special Judge presiding over the rehearing lacked subject
matter jurisdiction over the claim because he was not properly appointed to preside over the
case.
The circuit court conducted a de novo hearing on DCS‟s petition to adjudicate the
child dependent and neglected and a victim of severe abuse on August 14, 2014. At trial,
Tanisha Harper, an investigator for DCS, testified regarding how the child first came into
DCS custody. According to Ms. Harper, on Tuesday, September 4, 2012, DCS received a
referral that the child was the victim of severe physical abuse and that the child was currently
admitted to LeBonheur. Ms. Harper was assigned to investigate the allegations. Accordingly,
she arrived at LeBonheur and spoke with the child‟s maternal grandmother, who was staying
6
with the child. Mother was not present at the hospital at that time, but instead had returned to
her home with crime scene police officers.
According to Ms. Harper, upon arriving at LeBonheur, she learned that the child had
severe physical injuries, including a subdural hematoma, bilateral retinal hemorrhages, and a
liver laceration. Ms. Harper took photographs of the child, which were admitted into
evidence over Mother‟s objection. Ms. Harper then interviewed the maternal grandmother,10
who informed her that the child, Mother, and maternal grandmother attended a well-being
check up with his pediatrician on the Friday before his injuries were discovered. According
to maternal grandmother, no issues were observed by the pediatrician. Thereafter, maternal
grandmother informed Ms. Harper that Mother and the child stayed with maternal
grandmother from Friday night until Sunday evening. Ms. Harper testified, however, that
Mother later informed her that she and the child only stayed with maternal grandmother until
Saturday evening. According to Ms. Harper, regardless of whether the child left on Saturday
or Sunday, there was no evidence regarding any traumatic event that occurred while at
maternal grandmother‟s home that could explain the child‟s injuries. Instead, maternal
grandmother testified that the child was healthy and normal when he left her home. Maternal
grandmother explained that she had no other contact with the child until she was called to
come to LeBonheur.
Ms. Harper spoke in depth with Mother about the child‟s injuries at a Child and
Family Team meeting on September 6, 2012. Mother confirmed that the child was healthy on
the Friday before the incident. However, Mother was generally unable to explain the child‟s
injuries. First, Mother offered that other children lived in maternal grandmother‟s home, one
of whom liked to hold the child. However, Mother stated that the older child was never alone
with Marcell and that she never witnessed the child fall or suffer injuries while at maternal
grandmother‟s home.
According to Ms. Harper, Mother explained that upon leaving maternal grandmother‟s
home, she returned to her own residence. In addition to Mother and the child, two others
resided in the residence— Mother‟s paramour, Anthony G. (“Boyfriend”) and his father.
Mother stated that Boyfriend‟s father was not around the child at any time. In addition, Ms.
Harper testified that Mother repeatedly emphasized that she is the primary caretaker of the
child and that Boyfriend “did not have any contact or . . . care for the baby.” In addition, Ms.
Harper testified that Mother stated that Boyfriend was at work during the weekend at issue.
However, Ms. Harper also testified that Mother later informed her that there was a time in
which Boyfriend was alone with the child while she was taking a shower. According to Ms.
Harper, however, this incident may have occurred on a different weekend. Indeed, Ms.
10
Maternal grandmother did not testify.
7
Harper testified that she asked Mother several times if Boyfriend had contact with the child
on the weekend in question and “she specifically said no.”
Ms. Harper also tried to discern when the child‟s injuries occurred. According to Ms.
Harper, Mother explained that periodically on Sunday, the child would “stiffen up” in an
unexplained fashion. However, Mother stated that later in the day, the child appeared to be
fine and that he continued to eat and sleep normally. Mother further stated that the child ate
and slept normally on Monday morning. On Monday around 12:00 p.m., however, Mother
noticed that the child was having hiccups and that he suddenly became non-responsive. On
the advice of maternal grandmother, Mother decided to take the child to the hospital. Ms.
Harper testified that after the child‟s extensive injuries were discovered, he remained in the
hospital for nearly a month.
Ms. Harper admitted that the information contained in her testimony came solely from
her conversations with Mother and maternal grandmother and information she received from
LeBonheur. Ms. Harper did not interview Boyfriend or his father, nor did she investigate
Mother‟s home, leaving that task to police officers. However, no police officers testified at
trial.
The deposition of Dr. Karen Lakin, Assistant Professor of Pediatrics for the University
of Tennessee, Medical Director for LeBonheur Child Assessment Program and general
pediatrician, was read into the record. Dr. Lakin testified that her specialty is diagnosing and
treating children with complex medical problems or non-accidental trauma. Dr. Lakin
testified that when the child was admitted to LeBonheur, he was in critical condition.
Dr. Lakin testified as to Mother‟s explanation of the events leading up to the child‟s
hospitalization. According to Dr. Lakin, Mother explained that on the day the child was
admitted to the hospital, he woke up with what she thought was a fever but that he was
otherwise playful and normal. Mother also stated that the child ate and slept normally on
Monday morning. By noon, however, Mother told Dr. Lakin that she noticed the child
“jumping.” Dr. Lakin testified that Mother‟s description of the child‟s movement was
consistent with seizure activity. Mother also told Dr. Lakin that the child was not responsive.
Upon presenting to LeBonheur, a CT scan revealed that the child suffered from an
acute right subdural hematoma. Elevated liver enzyme readings also led to the discovery of
the child‟s liver laceration. The child was then admitted to the hospital and a skeletal survey
was performed, which revealed a left distal radial buckle fracture, meaning a fracture of the
larger of the two bones in the arm, near the wrist. Dr. Lakin explained that this type of
fracture is often seen when an individual falls and attempts to catch himself, but that was not
possible in a child of five months old. Further, an ophthalmological exam revealed that the
child suffered from bilateral retinal hemorrhages.
8
The child had previously presented to LeBonheur after a fall onto a concrete floor
when he was approximately five weeks old; however, the child was found to have no injuries
as a result of the fall at that time.11 Dr. Lakin testified that the child‟s current injuries were
not the result of his previous fall. Based upon all of the child‟s injuries, Dr. Lakin concluded
that the child was a victim of non-accidental traumatic injury. Specifically, Dr. Lakin testified
that the child‟s subdural hematoma and bilateral retinal hemorrhages were likely the result of
“significant acceleration-deceleration type mechanisms which would be very abrupt
acceleration and then sudden deceleration, which we often see in such as whiplash or
shaking.” In addition, Dr. Lakin stated that the child‟s liver laceration was “most definitely a
traumatic injury to the liver because that required some type of impact that cause[d] that . . .
break.” Dr. Lakin also explained that the child‟s seizures could have been caused by the
subdural hematoma. Dr. Lakin stated that the subdural hematoma and liver laceration were
life-threatening injuries.
According to Dr. Lakin, Mother offered no plausible explanation for the child‟s
injuries. Dr. Lakin specifically testified that a child of Marcell‟s age could not cause these
injuries to himself by bumping his head against a wall, as Mother proffered. Dr. Lakin also
explained that the child had no pre-existing conditions that could have made him more prone
to these injuries and that a seizure could not have caused these injuries. Further, Dr. Lakin
testified that had the child been injured on Friday, the child‟s pediatrician would have
discovered his injuries. Dr. Lakin explained that during her interview of Mother, Mother
indicated that only she was with the child on Monday, September 3, 2012, and that nothing
out of the ordinary happened. Dr. Lakin admitted, however, that she had no knowledge of
who was around the child prior to the morning of Monday, September 3. Regardless, Dr.
Lakin testified that in her professional opinion, the child‟s injuries most likely occurred on
Monday between the last feeding and around noon when the child became symptomatic
because the child was sleeping and eating normally prior to that time. Dr. Lakin explained
that due to the extent of the child‟s injuries, the child was not “going to be happy and eat,
take a bottle and be playful during that period of time.” Because Mother offered no plausible
explanation for the injuries, such as a fall or car accident, Dr. Lakin testified that this led her
to conclude that the child was the victim of “abusive head trauma.” Finally, Dr. Lakin
testified that due to his injuries, there is a “high likelihood” that the child will have
developmental deficits. Specifically, Dr. Lakin testified that a child with these types of
injuries are at higher risk of intellectual problems, developmental problems, and motor
problems if the child develops cerebral palsy “secondary to the injury in his brain.”
11
Dr. Lakin testified that because Mother provided a suitable explanation related to the fall and the
child had no real injuries, there was no suspicion that the child was the victim of non-accidental trauma as a
result of that incident.
9
Foster Mother also testified regarding the child‟s injuries. At the time of trial, the child
was twenty-seven months old. According to Foster Mother, the child suffers from severe
developmental delays and difficulties. Foster Mother testified that at the time he came into
the home, the child acted more like an infant than a six-month-old and that he had a cast on
his arm. Through various therapies, the child has improved. However, he still functions at a
ten-to-sixteen-month age level, he cannot walk,12 he cannot use utensils to feed himself, and
he cannot talk other than a few spontaneous words. The child attends approximately two
doctor‟s appointments a month, and three or four therapy sessions a week. The child must
attend physical therapy to address his gross motor skills and walking, speech therapy to help
his severely delayed speech, and developmental therapy. The child is also required to take
medication for spastic hemiplegia, which is a neurological disorder that causes one side of
his body to become contracted. The child has undergone at least one surgery and may need
additional surgeries to treat the spastic hemiplegia. Foster Mother testified that the child was
recently diagnosed with cerebral palsy.13 Foster Mother finally testified that she and her
husband would like to adopt the child, should he become available for adoption.
Mother did not testify but instead invoked her right against self-incrimination due to
criminal charges that were unresolved at the time of trial.14 At the conclusion of trial, counsel
for Intervening Relatives indicated that his clients wished to voluntarily dismiss their petition
to intervene and to stay the magistrate‟s ruling. Subsequently, on August 22, 2014, an order
12
Foster Mother testified that the child requires “braces and a walker and twister cables and all sorts of
different equipment to try to align his legs properly.”
13
Cerebral palsy is defined as “a motor function disorder caused by a permanent, nonprogressive brain
defect or lesion present at birth or shortly thereafter.” Mosby’s Medical, Nursing, and Allied Health Dictionary
at 300.
14
In her brief, Mother asserts that all criminal charges against her have been dismissed and that
Boyfriend has been charged in an unrelated matter with child abuse of his own child. Accordingly, Mother asks
this Court to consider this evidence, and remand for a rehearing so that Mother may testify and present
additional evidence regarding the criminal charges. Rule 14 of the Tennessee Rules of Appellate Procedure
governs requests to consider post-judgment facts. Rule 14(b) provides that a motion to consider post-judgment
facts must be made pursuant to Rule 22 of the Tennessee Rules of Appellate Procedure. Rule 22 requires a
written motion to this Court, a written memorandum of law, and an affidavit supporting such motion, if
needed. Mother‟s counsel did file an affidavit with this Court; however, no motion was ever filed. Instead,
Mother merely appended the relevant documents to her appellate brief. Generally, however, this Court will not
consider documents that were merely attached to appellate briefs. See Tenn. R. App. P. 24; Carney v. State,
No. M2006-01740-CCA-R3-CO, 2007 WL 3038011, at *4 (Tenn. Crim. App. Oct.17, 2007) (stating that
“documents attached to an appellate brief but not included in the record on appeal cannot be considered by this
court as part of the record on appeal” (internal citation omitted)); Forrest v. Rees, No. 01C01-9411-CC-00387,
1996 WL 571765, at *3 (Tenn. Crim. App. Oct. 8, 1996) (stating that “attachments to briefs are not evidence
and will not be considered by the appellate courts); Pinney v. Tarpley, 686 S.W.2d 574, 579 (Tenn. Ct. App.
1984) (stating that “[m]erely attaching a document to a pleading does not place that document in evidence”).
10
of voluntary non-suit of Intervening Relatives‟ amended motion to intervene and to stay the
magistrate‟s ruling regarding the permanency plan was entered by the trial court.
The trial court entered an order containing detailed findings of fact and conclusions of
law on September 29, 2014. Therein, the trial court first disposed of Mother‟s pending
motion in limine and motion regarding discovery. Although it had been non-suited, the trial
court also denied Intervening Relatives‟ amended motion to intervene and to stay the
magistrate‟s ruling. The trial court also found that the child was dependent and neglected and
that Mother had committed severe abuse pursuant to Tennessee Code Annotated Section 37-
1-102(b).15 Mother filed a timely notice of appeal.
Issues Presented
As we perceive it, Mother raises two issues on appeal:
1. Whether “it was error for the trial judge to deny a Motion to Stay the Magistrate‟s
Ruling Modifying the Parenting Plan, or in the alternative, To Set Aside the Rulings
of the Special Judge for Lack of Jurisdiction.”
2. Whether the trial court erred in finding clear and convincing evidence that Mother
committed severe abuse?
Discussion
The Intervening Relatives’ Motion to Stay the Magistrate’s Ruling
Mother first argues that the trial court erred in denying the Intervening Relatives‟
motion to stay the magistrate‟s ruling regarding the modification of the permanency plan or
for lack of subject matter jurisdiction. Specifically, Mother argues that “because the record
does not state the necessity for the judge‟s absence, . . . the magistrate sitting as special judge
was not appointed by necessity but by convenience and was therefore not properly
presiding.” Further, Mother argues that the Special Judge erred in changing the goal of the
permanency plan because “the relatives who had been working with the department and had
become an approved foster home, should have been acknowledged as parties for the purposes
of the permanency planning hearing.” Both of these errors, Mother contends, require this
15
The trial court and the parties both refer to the definition of severe abuse as being contained in
Tennessee Code Annotated Section 37-1-102(b)(23), which refers to a prior version of the statute. However, in
2011, the General Assembly amended Tennessee Code Annotated Section 37-1-102 to delete certain
subdivisions and renumber the remaining subdivisions. See 2011 Tenn. Laws Pub. Ch. 486 (H.B. 713) (taking
effect on July 1, 2011). The change has no substantive effect on the outcome of this case. Accordingly, we will
refer to the current version of Tennessee Code Annotated Section 37-1-102 throughout this Opinion.
11
Court to vacate the judgment of both the circuit court and Juvenile Court and remand for a
new hearing before the juvenile judge.
As an initial matter, several procedural problems exist with regard to Mother‟s
argument. First, we note that Mother is appealing the purported denial of a motion filed by
another party. However, Mother has no standing to appeal the denial of another party‟s
motion. See Knierim v. Leatherwood, 542 S.W.2d 806, 808 (Tenn. 1976); Garrison v.
Stamps, 109 S.W.3d 374, 377 (Tenn. Ct. App. 2003) (“The doctrine of standing is used to
determine whether a particular plaintiff is entitled to judicial relief.”); SunTrust Bank v.
Johnson, 46 S.W.3d 216, 222 (Tenn. Ct. App. 2000) (“[Standing] requires the court to
determine whether the plaintiff has alleged a sufficiently personal stake in the outcome of the
litigation to warrant a judicial intervention.”). Had Mother filed her own motion on the same
grounds, she would certainly have standing to appeal a denial of her motion. However, a
careful review of the record reveals that while Mother filed a response to the Intervening
Relatives‟ motion generally agreeing with the allegations and arguments, Mother did not file
her own motion to stay the proceedings, nor did she specifically join in the Intervening
Relatives‟ motion. Moreover, although the Intervening Relatives filed an amended motion,
Mother filed no response of any kind to this motion. Accordingly, she has no standing to
raise the purported denial of that motion on appeal.
Furthermore, we disagree with Mother‟s characterization of the disposition of the
Intervening Relatives‟ motion. Here, Intervening Relatives filed their first motion to
intervene and stay the proceedings on March 28, 2014, in the circuit court.16 This motion did
not argue that the Special Judge presiding over the rehearing was not properly appointed and
therefore, the juvenile court lacked subject matter jurisdiction. Instead, the argument was
raised for the first time in Intervening Relatives‟ amended motion to intervene, to stay the
magistrate‟s ruling, and to set aside the Special Judge‟s ruling for lack of subject matter
jurisdiction filed on August 13, 2014. Because this was an amended motion, rather than
simply an amendment to the original motion, “it supersedes and destroys the original
[motion.]” H.G. Hill Realty Co. v. Re/Max Carriage House, Inc., 428 S.W.3d 23, 35 (Tenn.
Ct. App. 2013) (quoting McBurney v. Aldrich, 816 S.W.2d 30 (Tenn. Ct. App. 1991)).
Accordingly, the amended motion became the only motion pending concerning this subject
matter. This motion, however, was not denied by the trial court; it was voluntarily dismissed
by Intervening Relatives. Indeed, in their notice and order of voluntary dismissal, Intervening
Relatives specifically reference their argument concerning the Special Judge‟s subject matter
jurisdiction, an argument raised only in the amended motion. Consequently, despite the trial
court‟s final order, this motion was simply not denied, it was non-suited by Intervening
16
Notably, as discussed infra, nothing in the record shows that this issue was raised in the juvenile
court by any party.
12
Relatives. Accordingly, Mother‟s issue presented that the trial court erred in denying the
Intervening Relatives‟ motion is without merit.
Regardless of how Mother frames her issue in the” issues presented” section of her
brief, Mother goes on in the body of her brief to argue: (1) that the Special Master erred in
altering the goal of the permanency plan at the rehearing of the dependency and neglect
adjudication; and (2) that the Special Judge was improperly appointed so as to deprive him of
subject matter jurisdiction to preside over the rehearing. Still more procedural problems
plague Mother‟s argument, however. First, we note that Mother‟s first argument appears to
concern her allegation that the Special Judge‟s ruling “cast aside family members who were
not allowed to participate or even attend the rehearing.” From our review of the record,
however, Intervening Relatives filed no motion to intervene in the juvenile court. Moreover,
Intervening Relatives were allowed to fully participate in the de novo appeal to the circuit
court. Finally, and most importantly, Intervening Relatives subsequently voluntarily
dismissed their case. Because they no longer have any interest in the outcome of this dispute,
even if the juvenile court erred in not allowing Intervening Relatives to participate in the
formulation of a permanency plan, any error is harmless. See Childs v. Roane Cnty. Bd. of
Educ., 929 S.W.2d 364, 367 (Tenn. Ct. App. 1996) (“[A] statutory error may be harmless if it
does not prejudice the substantive rights of a party.”) (citing Tamplin v. Star Lumber &
Supply Co., 836 P.2d 1102 (Kan. 1992)).
Most importantly, a thorough review of the record reveals that Mother never raised
these issues in the juvenile court. It is well-settled that “parties will not be permitted to raise
issues on appeal that they did not first raise in the trial court.” Fayne v. Vincent, 301 S.W.3d
162, 171 (Tenn. 2009). Here, the record shows that the issues asserted by Mother were
simply not raised by any party until the appeal of the dependency and neglect finding in the
circuit court. Furthermore, although Intervening Relatives did raise these issues in the circuit
court in their amended motion, Mother did not join in Intervening Relatives‟ amended motion
or in any way express her approval of the position advanced by the amended motion in the
trial court. As such, this appeal is the first time that Mother has raised these arguments.
Accordingly, they are waived.
With regard to Mother‟s argument regarding the subject matter jurisdiction of the
Special Judge, we note that Mother is correct in her assertion that arguments regarding
subject matter jurisdiction may not be waived and, instead, can be raised at any time. See C.
F. Rule Constr. Co. v. Cumberland River Sand Co., 204 Tenn. 378, 380-81, 321 S.W.2d
791, 792 (1959) (“It is well settled that, while jurisdiction of the person may be waived or
conferred by consent, jurisdiction of the subject matter can not [sic] be and the question may
be raised at any stage of the proceedings.”). However, the issue of whether a magistrate has
been properly appointed to serve as a special judge in juvenile court has been thoroughly
litigated and has never been deemed to constitute an issue of subject matter jurisdiction. See
13
generally In re Valentine, 79 S.W.3d 539, 545 (Tenn. 2002); In re J.G.H., Jr., No. W2008-
01913-COA-R3-PT, 2009 WL 2502003, at *9 n.11 (Tenn. Ct. App. Aug. 17, 2009); In re
M.A.P., No. W2008-01352-COA-R3-PT, 2009 WL 2003357, at *13 n.11 (Tenn. Ct. App.
July 10, 2009);17 Maxwell Med., Inc. v. Chumley, 282 S.W.3d 893, 898 (Tenn. Ct. App.
2008); State Dep’t of Children’s Servs. v. F.R.G., No. E2006-01614-COA-R3PT, 2007 WL
494996, at *4 (Tenn. Ct. App. Feb. 16, 2007); see also Ferrell v. Cigna Property & Cas. Ins.
Co., 33 S.W.3d 731, 737–38 (Tenn. 2000) (outlining the procedure for appointing a special
17
I note that in both In re J.G.H., Jr. and In re M.A.P., I filed separate dissenting opinions expressing
grave concerns over the appointment process for special judges in Shelby County Juvenile Court. See In re
J.G.H., Jr., 2009 WL 2502003, at *19 (Stafford, J., dissenting); In re M.A.P., 2009 WL 2003357, at *19
(Stafford, J., dissenting). Nothing that the Shelby County Juvenile Court has done in the intervening six years
has completely abated those concerns. However, I note that the Tennessee Supreme Court appeared to have an
opportunity to address my concerns in the case of In re Bernard T., 319 S.W.3d 586 (Tenn. 2010). In this
Court‟s opinion on that cause, State, Dep’t of Children’s Servs. v. Temple, No. W2008-02803-COA-R3-PT,
2009 WL 3681884 (Tenn. Ct. App. Nov. 5, 2009), rev’d sub. nom. Bernard, 319 S.W.3d 586, the Court of
Appeals considered the very issue raised by Mother: whether the special master was properly appointed to hear
a case in the Shelby County Juvenile Court. Father argued on appeal that proper procedures were not followed
with regard to the appointment of the special judge to preside over the termination of his parental rights. The
Court of Appeals concluded that regardless of whether proper procedures were followed, the special judge
“was appointed under color of law, and there is nothing in the record indicating that he acted in bad faith.” Id.
at *5 (citing In re M.A.P., 2009 WL 2003357, at *13 n.11). Accordingly, the Court of Appeals held that the
failure to follow proper procedures in appointing the special judge did not require remand for a new hearing.
Temple, 2009 WL 3681884, at *5. The Court went on to conclude, however, that because DCS failed to make
reasonable efforts regarding reunification, termination of Father‟s parental rights was not proper. Id. at *14.
The Tennessee Supreme Court granted an application for permission to review and reversed the Court of
Appeals‟ ruling regarding reasonable efforts. See Bernard, 319 S.W.3d at 589. Notably, however, the
Tennessee Supreme Court declined to address any argument that the special judge was improperly appointed.
See generally id. at 589–607. From their decision not to address this issue, we can infer that either: (1) the
issue did not concern a matter of subject matter jurisdiction, as the Court felt no duty to address it, see Tenn. R.
App. P. 13(b) (“The appellate court shall also consider whether the trial court and appellate court have
jurisdiction over the subject matter, whether or not presented for review[.]”); or (2) the Tennessee Supreme
Court approved of the Court of Appeals‟ analysis of this issue. In either case, it appears that the Tennessee
Supreme Court did not share my concerns expressed in In re J.G.H., Jr. and In re M.A.P.
In addition, my concerns in this case are somewhat assuaged by the fact that, unlike in In re J.G.H.,
Jr. and In re M.A.P., this case involves not a termination of parental rights proceeding, but instead a
dependency and neglect action. In an appeal to the circuit court of a dependency and neglect action, the circuit
court judge is directed to “hear the testimony of witnesses and try the case de novo.” Cornelius v. State, Dep't
of Children’s Servs., 314 S.W.3d 902, 906 (Tenn. Ct. App. 2009) (quoting Tenn. Code Ann. § 37-1-159(a)).
“Consequently, the circuit court is not „reviewing‟ the juvenile court‟s decision; instead, it is conducting a new
proceeding as though the petition was originally filed in circuit court.” Cornelius, 314 S.W.3d at 906. There is
no question that the circuit court judge was properly elected and had subject matter jurisdiction to preside over
Mother‟s appeal. Furthermore, any errors that occurred in the juvenile court could have been corrected in the
circuit court. Under these circumstances, I am less concerned than in termination cases about the appointment
process for special judges in Shelby County Juvenile Court.
14
judge in Tennessee, but declining to state that such question involves the court‟s subject
matter jurisdiction); c.f. Winters v. Allen, 166 Tenn. 281, 62 S.W.2d 51, 52 (1933) (“The rule
is well settled in this state, certainly in civil cases, that a party may waive the incompetency
or lack of authority to act of the trial judge, and does so waive it by implication when no
objection is made at the trial and in the trial court.”). Although involving a termination of
parental rights case, rather than a dependency and neglect action that is followed by a de
novo trial in the circuit court, we take instruction from this Court‟s Opinion in State
Department of Children’s Services v. A.M.H., 198 S.W.3d 757, 764 (Tenn. Ct. App. 2006).
The A.M.H. Court clearly recognized the rule regarding waiver of subject matter jurisdiction
arguments. See Id. at 762 (acknowledging, but rejecting Mother‟s argument the challenge to
the appointment of the special master involves a question of subject matter jurisdiction that
can be raised at any time) (citing Tenn. R.App. P. 13(b)). However, the Court went on to
specifically hold that an argument substantially similar to Mother‟s argument in this case was
waived by her failure to raise the issue in the juvenile court, thus indicating that the argument
did not implicate the court‟s subject matter jurisdiction. Id. at 764 (“Mother did not appeal on
the grounds that [the juvenile judge‟s] absence was unnecessary or that the paperwork
concerning [the special judge‟s] appointment was improper or lacking; thus, these issues are
deemed waived.”); see also Valentine, 79 S.W.3d at 545 (holding that any argument
regarding the special judge‟s “general authority” to hear the case had been waived by the
failure to designate that argument as an issue on appeal); F.R.G., 2007 WL 494996, at *4
(stating, in dicta, that a procedural error in designating a special judge was waived on appeal
because mother failed to object in the trial court). Accordingly, we must conclude that
Mother‟s argument concerning the Special Judge‟s appointment and authority to preside over
the rehearing are, likewise, waived by her failure to raise these arguments in either the circuit
court or the juvenile court. See Wroe v. Greer, 32 Tenn. 172, 173 (Tenn. 1852) (holding that,
inter alia, an objection to the competency of a general sessions judge was waived because the
objection was raised for the first time in a de novo appeal to the circuit court).
Severe Abuse
Mother next argues that the trial court erred in finding that she committed severe
abuse pursuant to Tennessee Code Annotated Section 37-1-102(b)(21)(a) and (b) in the
dependency and neglect proceeding. According to this Court:
The Legislature has described what constitutes dependency and
neglect, the procedures and steps to be taken in making this
determination, and the jurisdiction of the juvenile courts, as
follows:
A “dependent and neglected child” is a child:
15
* * *
(G) Who is suffering from abuse or neglect;
* * *
Tenn. Code Ann. § 37-1-102(b)(12).
The General Assembly has vested juvenile courts with
“exclusive original jurisdiction” to hear allegations that a child
is dependent and neglected as defined above. Tenn. Code Ann. §
37–1–103(a)(1). . . . The fact that a child is dependent and
neglected and the fact that a parent has engaged in severe child
abuse must be established by clear and convincing evidence.
Tenn. Code Ann. § 37-1-129(c); Tenn. Dep't of Children's
Servs. v. M.S., No. M2003–01670-COA-R3-CV, 2005 WL
549141, at *10 (Tenn. Ct. App. Mar.8, 2005) (holding that
despite the lack of a statutory requirement that severe child
abuse be shown by clear and convincing evidence, due to the
consequences of such a finding the clear and convincing
standard must be applied). For the evidence to be clear and
convincing, it must eliminate any serious or substantial doubt
about the correctness of the conclusions to be drawn from the
evidence. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3
(Tenn. 1992)). The evidence should produce a firm belief or
conviction as to the truth of the allegations sought to be
established. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App.
2007). In contrast to the preponderance of the evidence
standard, clear and convincing evidence should demonstrate that
the truth of the facts asserted is “highly probable” as opposed to
merely “more probable” than not. In re M.A.R., 183 S.W.3d
652, 660 (Tenn. Ct. App. 2005) (quoting In re C.W.W., 37
S.W.3d 467, 474 (Tenn. Ct. App. 2000)).
Cornelius v. State, Dep’t of Children’s Servs., 314 S.W.3d 902, 905–06 (Tenn. Ct. App.
2009).
In dependency and neglect cases, the General Assembly has directed that any appeal
from the juvenile court is to be heard by the circuit court. Tenn. Code Ann. § 37-1-159(a).
The appeal from juvenile court to circuit court in a dependency and neglect case is not the
same as this Court‟s review of trial court decisions, as set out in the Tennessee Rules of
16
Appellate Procedure. That is because, by statute, the circuit court is to “hear the testimony of
witnesses and try the case de novo.” Id. While the circuit court in a dependency and neglect
proceeding is permitted to consider the juvenile record, it may not rely solely on the record
made before the juvenile court. In re K.A.P., No. W2012-00281-COA-R3JV, 2013 WL
6665012, at *6 (Tenn. Ct. App. Dec. 17, 2013). Instead, Tennessee Code Annotated Section
37-1-159(c) provides that the circuit court must try the case de novo by hearing witnesses
again and by rendering an independent decision based on the evidence received in the circuit
court proceeding. Tenn. Dep’t. of Children’s Servs. v. T.M.B.K., 197 S.W.3d 282, 289
(Tenn. Ct. App. 2006). A de novo trial is “[a] new trial on the entire case-that is, on both
questions of fact and issues of law-conducted as if there had been no trial in the first
instance.” Kissick v. Kallaher, No. W2004-02983-COA-R3-CV, 2006 WL 1350999, at *3
(Tenn. Ct. App. May 18, 2006).
This Court reviews the trial court‟s findings of fact de novo on the record
accompanied by a presumption of correctness, “unless the preponderance of the evidence is
otherwise.” Tenn. R. App. P. 13(d); In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004). Whether the ultimate issues of dependency and neglect or severe child abuse have
been established by clear and convincing evidence are questions of law, which we review de
novo with no presumption of correctness. See In re Adoption of A.M.H., 215 S.W.3d 793,
810 (Tenn. 2007) (holding in a termination of parental rights case that “[a]s a question of
law, the trial court‟s ruling that the facts of this case sufficiently support the termination
ground of willful abandonment are reviewed de novo with no presumption of correctness”);
see also In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002) (holding that the question of
substantial noncompliance with the requirements of a permanency plan was a question of law
reviewed de novo with no presumption of correctness).
In this case, Mother does not appeal the trial court‟s finding that the child was
dependent and neglected; instead, she only appeals the trial court‟s finding that she severely
abused the child. Severe child abuse is defined as, inter alia:
(A)(i) The knowing exposure of a child to or the knowing
failure to protect a child from abuse or neglect that is likely to
cause serious bodily injury or death and the knowing use of
force on a child that is likely to cause serious bodily injury or
death; [or]
(ii) “Serious bodily injury” shall have the same meaning
given in § 39-15-402(d).
(B) Specific brutality, abuse or neglect towards a child that in
the opinion of qualified experts has caused or will reasonably be
17
expected to produce severe psychosis, severe neurotic disorder,
severe depression, severe developmental delay or intellectual
disability, or severe impairment of the child‟s ability to function
adequately in the child‟s environment, and the knowing failure
to protect a child from such conduct; . . . .
Tenn. Code Ann. § 37-1-102(b)(21). Serious bodily injury “includes, but is not limited to,
second- or third-degree burns, a fracture of any bone, a concussion, subdural or subarachnoid
bleeding, retinal hemorrhage, cerebral edema, brain contusion, injuries to the skin that
involve severe bruising or the likelihood of permanent or protracted disfigurement, including
those sustained by whipping children with objects.” Tenn. Code Ann. § 39-15-402(d).
In this case, it appears that there is no dispute that the child‟s injuries, including the
subdural hematoma, wrist fracture, and retinal hemorrhages, constitute severe bodily injury.
Additionally, it does not appear that Mother is arguing that the child‟s injuries did not result
from non-accidental trauma. Indeed, Dr. Lakin‟s testimony on this issue clearly states that the
child‟s injuries were non-accidental, and there is no evidence in the record to refute that
conclusion. Instead, with regard to subsection (A), Mother argues that there was insufficient
evidence to meet the clear and convincing standard that she knowingly exposed the child to
abuse or knowingly failed to protect the child from abuse. Further, with regard to subsection
(B), Mother argues that Dr. Lakin‟s testimony was insufficient to show that the child‟s
injuries are likely to produce the type of effects required by that subsection, or that Mother
knowingly failed to protect the child from such harm.
We begin with an analysis of subsection (A). The evidence in the record establishes
that all of the child‟s injuries likely occurred between Saturday evening, September 1, and
Monday, September 3, 2012. Specifically, the child‟s Friday, August 31, 2012, pediatrician
visit revealed no injuries, and maternal grandmother indicated to Ms. Harper that the child
was uninjured when he left her home on Saturday or Sunday night. At trial, Ms. Harper
testified that Mother was the only individual around the child on Sunday and Monday,
September 2 and 3, 2012, when his injuries were most likely to have occurred. According to
Ms. Harper, Mother emphasized that she was the primary caretaker of the child and the only
person to care for the child after leaving maternal grandmother‟s house. Although Dr. Lakin
could only testify as to Mother‟s statements regarding who was around the child on Monday,
September 3, Dr. Lakin testified that Mother never gave any indication that another
individual could have hurt the child, a fact which Dr. Lakin testified was important for
diagnosis and treatment.
18
On appeal, Mother argues, however, that Boyfriend is the true perpetrator because he
was alone with the child while Mother was taking a shower the evening before the child was
taken to LeBonheur. The record indicates that Mother indeed informed Ms. Harper that
Boyfriend had contact with the child during the course of the investigation into the child‟s
injuries. However, Mother chose to delay informing Ms. Harper of this purported fact until
more than a week after the child was admitted to the hospital and after the petition to find
Mother guilty of severe abuse was filed. Further, nothing in the record indicates that Mother
so much as suggested to Dr. Lakin that Boyfriend could have been the perpetrator of the
child‟s injuries.
Even more importantly, Ms. Harper testified that her investigation revealed that the
shower incident did not occur on the weekend in question, but on an earlier date. The trial
court specifically credited Ms. Harper‟s testimony on this issue, finding that the shower
incident “did not occur on the weekend in question.” As we have explained:
Under the clear and convincing evidence standard, it is
important to “distinguish between the specific facts found by the
trial court and the combined weight of those facts.” In re
Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct. App. 2007). Each
specific underlying fact need only be established by a
preponderance of the evidence. Such specific underlying facts
include whether a particular injury suffered by the child was the
result of nonaccidental trauma, and whether the caregiver's
conduct with respect to the injury was “knowing.” Once these
specific underlying facts are established by a preponderance of
the evidence, the court must step back to look at the combined
weight of all of those facts, to see if they clearly and
convincingly show severe child abuse.
In re S.J., 387 S.W.3d at 591–92. Accordingly, the trial court‟s finding that Boyfriend was
not alone with the child on Sunday, September 3, must only be supported by a preponderance
of the evidence. We will not overturn a trial court‟s factual findings unless “the
preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d). Based upon the
unrefuted testimony of both Ms. Harper and Dr. Lakin that Mother initially repeatedly
informed them that she was the only person caring for the child, we cannot conclude that the
evidence preponderates against the trial court‟s finding that the shower episode occurred on a
different weekend.18
18
Mother argues in her brief that she was not allowed to support her contention that Boyfriend was the
perpetrator of the child‟s injuries because she was forced to invoke her right against self-incrimination due to
19
Additionally, even if we were to credit Mother‟s assertion that Boyfriend was alone
with the child on the evening of Sunday, September 2, this is simply insufficient to show that
he was the perpetrator of the child‟s injuries. Importantly, although Dr. Lakin declined to
give an exact time that the child‟s injuries occurred, she did opine that the injuries most likely
occurred on the morning of Monday, September 3, 2012. According to Dr. Lakin, the child‟s
injuries, particularly the liver laceration, would have caused the child to decline to eat.
However, Mother indicated to Dr. Lakin that the child ate normally on the morning of
Monday, September 3. This led Dr. Lakin to believe that the child‟s injuries likely occurred
after his last feeding on Monday morning. There is no evidence in the record of any kind to
suggest that Boyfriend was alone with the child, or even around the child, on the morning of
Monday, September 3. All of the evidence in the record suggests that Mother alone was
caring for the child at this time; however, Mother offered no plausible explanation for the
child‟s injuries.
Unfortunately, this situation is not a rarity for this Court:
This case presents a textbook example of the confluence of
circumstances that are presented with unfortunate regularity in
cases of alleged child abuse. A preverbal infant or child sustains
serious injuries, the only witnesses to the injuries are the parents
or caregivers who maintain that the injuries result from an
innocent misunderstanding or inexplicable mystery, and
testimony by medical personnel whose role is to opine as to the
most likely cause of the child‟s injuries, not to identify the
perpetrator.
In re S.J., 387 S.W.3d 576, 591 (Tenn. Ct. App. 2012). Further, with regard to the knowing
element of subsection (A), this Court has explained:
the pending criminal charges against her. Because Mother now alleges that the charges against her have been
dismissed, she asks this Court to remand for another hearing wherein she may testify. It appears from the
record that Mother provided testimony on this issue during the original dependency and neglect hearing.
Magistrate Hogan detailed Mother‟s testimony in her April 25, 2013 order finding the child dependent and
neglected. The trial court clearly considered the evidence presented in the prior proceedings, as the magistrate‟s
findings are included in the trial court‟s order. See generally In re Isaiah L., 340 S.W.3d 692, 707
(Tenn.Ct.App.2010) (concerning the duty of the circuit court to consider the juvenile record). Accordingly, the
trial court was able to consider Mother‟s testimony on this issue. Further, Mother cites no law that would
entitle her to a new hearing simply because pending criminal charges were dismissed. Finally, as discussed
supra, Mother did not comply with the Rules of this Court in requesting that we consider post-judgment facts.
Accordingly, this issue is without merit.
20
In child abuse cases, the parent or caregiver may deny that the
injury was purposefully inflicted, and where the injuries are
inflicted on preverbal infants and children, there is often no
witness to the injury other than the parent or caregiver. The
“knowing” element can and often must be gleaned from
circumstantial evidence, including but not limited to, medical
expert testimony on the likelihood that the injury occurred in the
manner described by the parent or caregiver. Moreover,
“knowing” conduct by a parent or caregiver is not limited to
conduct intended to cause injury[.]
Id. at 592.
Here, Dr. Lakin similarly testified to the fact that it was not plausible “that the injury
occurred in the manner described by [Mother].” Id. Further, Dr. Lakin testified that the
child‟s injuries were likely the result of “significant acceleration-deceleration type
mechanisms which would be very abrupt acceleration and then sudden deceleration, which
we often see in such as whiplash or shaking.” In a similar case, this Court held that because
of the nature of the child‟s injuries and the parents‟ failure to offer any plausible explanation,
the knowing element of Tennessee Code Annotated Section 37-1-102(b)(21)(A) was met. See
id. at 593. Specifically, the Court noted:
Neither Mother nor Father offered any explanation, and of
course newborn J.J. could not say who inflicted such fractures
on him. But we need not have an admission by Mother or an
eyewitness to find Mother responsible for J.J.‟s rib fractures.
The record indicates that only Mother and Father took care of
J.J., and Mother conceded that she was the primary caregiver.” .
. . [T]estimony establishes that J.J.‟s rib fractures resulted from
nonaccidental trauma in the form of very hard compression.
Under these circumstances, the evidence preponderates in favor
of a finding that Mother either knowingly inflicted the serious
bodily injury on J.J. or knowingly failed to protect him from the
serious bodily injury.
Id. at 592–93. Likewise in this case, Dr. Lakin testified that the child‟s injuries resulted from
nonaccidental trauma in the form of whiplash or shaking and that Mother was the child‟s
primary caregiver. Thus, the evidence preponderates in favor of a finding that Mother
knowingly inflicted serious bodily injury on the child or knowingly failed to protect the child
from serious bodily injury.
21
Having determined that Mother knowingly exposed the child to severe bodily harm or
knowingly failed to protect the child from severe bodily harm, we now consider whether “the
combined weight of the facts, either as found by the trial court or supported by a
preponderance of the evidence . . . establish[es] clearly and convincingly that the parent
committed severe child abuse.” In re Samaria S., 347 S.W.3d at 200 (citing Cornelius, 314
S.W.3d at 906–07). As previously discussed, it is undisputed that the child‟s injuries
constitute severe bodily injury. Further, the evidence supports a finding that Mother was the
sole caretaker of the child at the time he sustained his injuries. Finally, we have concluded
that the evidence preponderates in favor of a finding that Mother knowingly exposed the
child to severe bodily injury or knowingly failed to protect the child from severe bodily
injury. “Even in the absence of an admission by Mother or direct eyewitness testimony, when
we consider all of these specific underlying facts, there can be no mistake about the picture
that emerges.” In re S.J., 387 S.W.3d at 595. The combined weight of these facts clearly and
convincingly establishes that Mother committed severe abuse against the child pursuant to
Tennessee Code Annotated Section 37-1-102(b)(21)(A). Mother‟s argument regarding
Tennessee Code Annotated Section 37-1-102(b)(21)(B) is, therefore, pretermitted.
Conclusion
Because clear and convincing evidence in the record supports the trial court‟s finding
that Mother committed severe abuse, we affirm the decision of the trial court. Costs of this
appeal are assessed against Appellant, Michelle W. Because Michelle W. is proceeding in
forma pauperis in this appeal, execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
22