In Re Aubree D. ( 2022 )

09/28/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 1, 2022
IN RE AUBREE D.
Appeal from the Circuit Court for Overton County
No. 20-CV-10 Amy V. Hollars, Judge
___________________________________
No. M2021-01229-COA-R3-JV
___________________________________
This is a dependency and neglect case. The child was taken into protective custody by
Appellee Tennessee Department of Children’s Services (“DCS”) after an investigation
revealed that the then ten-week-old child suffered approximately 15 bone breaks. The
Juvenile Court for Davidson County conducted a hearing and adjudicated the child
dependent and neglected on its finding that Appellant, the child’s mother, had committed
severe child abuse. Mother appealed to the Circuit Court for Overton County (“trial court”).
Following a de novo trial, the trial court held that mother perpetrated severe child abuse on
the child. Consequently, the trial court adjudicated the child dependent and neglected, and
found that it was in the child’s best interest to remain in the custody of Appellee Tennessee
Department of Children’s Services (“DCS”). Mother appeals. Discerning no error, we
affirm.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.
Kelly R. Williams,1 Livingston, Tennessee, for the appellant, Taylor R.2
Herbert H. Slattery, III, Attorney General and Reporter, and Erica M. Haber, Assistant
Attorney General, for the appellees, Tennessee Department of Children’s Services, and
Austin D.
1
Kelly R. Williams did not represent Appellant at the trial level.
2
In cases involving minor children, it is the policy of this Court to redact the parties’ and children’s
names to protect their identities.
OPINION
I. Background
Aubree D. (the “Child”) was born in March 2019. Appellant Taylor R. (“Mother”)
and Austin D. (“Father”) were never married,3 but they were living together when the Child
was born. At the time of the Child’s birth, Mother worked as a certified nursing assistant;
by the time of trial, she was a full-time college student, studying to be a medical assistant.
Mother took four weeks of maternity leave immediately after the Child was born. During
the first weeks of the Child’s life, Father worked sixteen-hour, overnight shifts at his road
construction job. Because Father worked nights, Mother handled most of the day-to-day
parenting responsibilities. When Mother returned to work after her maternity leave, she
worked a full-time schedule with twelve-hour shifts from 6:00 a.m. to 6:00 p.m. While
Mother worked, Father watched the Child during the day. On weekends, the Child stayed
with her maternal grandmother, Melinda R. (“Grandmother”), or a sitter. Melinda R.
testified that the Child “cried a lot . . . like somebody with colic.”
On March 22, 2019, the Child was seen at the Overton County Health Department
(“Health Department”) for a two-week checkup. At that time, Mother reported that the
Child was having abdominal pain and was spitting up quite a bit; the Child’s formula was
changed, and Mother stated that this helped her symptoms. At the March 22, 2019
checkup, no abnormalities were noted.
On March 25, 2019, Mother brought Aubree to her pediatrician, Dr. James Nelson,
for vomiting and diarrhea.4 Dr. Nelson surmised the Child’s “gassiness,” vomiting,
diarrhea, and fussiness were the result of “heartburn” or “reflux,” and he prescribed over-
the-counter gas drops. On April 4, 2019, when Aubree was 27-days old, Mother brought
her to Dr. Nelson’s office “to look at [her] mouth and leg.” On examination, Aubree’s pulse
was 180, which was “higher than it should have been,” and could indicate pain in an infant.
Mother was concerned about Aubree’s leg “bowing,” but examination revealed normal
position and movement.
Mother brought Aubree back to Dr. Nelson on April 23, 2019, and reported that the
Child’s left eye was very crusty, and she was screaming at night. During her testimony,
Mother admitted that, before the April 23, 2019 doctor’s visit, she had seen bruising on
Aubree, but she did not tell Dr. Nelson about it. Mother explained that “bruises go away,
they might not have been visible at the time,” and that she “might of [sic] overlooked it”
because she “was a new mother” at the time and “didn’t know what to look for and what
to do.” At her April 23rd doctor’s visit, Aubree’s pulse was 196—a measurement of 160 is
indicative of pain in an infant. Following his examination, Dr. Nelson prescribed Zantac
3
Father did not appeal the trial court’s order, and he is not a party to this appeal.
4
The Child’s Grandmother was employed by Dr. Nelson office as a receptionist.
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to treat the Child’s acid reflux because “it was obviously getting worse.”
On May 8, 2019, Mother and Father took the Child to the Health Department for a
“wellness checkup.” The treating nurse, Megan Reeder, RN, noted a dime-sized bruise on
Aubree’s left cheek, and a bruise on the right side of the Child’s abdomen. Nurse Reeder
testified that this was an abnormal finding, and she was “very concerned.” Mother
allegedly told Nurse Reeder that the bruises “pop up for no apparent reason.”5 Both Mother
and Father expressed concern about the bruising, and Mother informed Nurse Reeder that
Grandmother had also seen “a couple” of bruises the size of “fingerprints” around the
Child’s ribcage. Mother stated that the bruising had been present for approximately two
days prior to the Health Department visit. Based on Mother’s statement that the bruises
would “pop up,” and based on Father’s occupation in road construction (which has a high
risk for lead toxicity), Nurse Reeder was concerned that Aubree had lead poisoning and
recommended that the parents immediately take the Child to her pediatrician for lead
testing. Although Nurse Reeder testified that she had never before seen bruising on a two-
month old, she explained that in view of the parents’ concern, she did not immediately
suspect abuse.
Although Dr. Nelson last saw Aubree on May 16, 2019, more than a week after the
Child was seen by Nurse Reeder, there is no indication in Dr. Nelson’s records that the
parents requested or discussed lead testing as Nurse Reeder had recommended. Rather, the
purpose of Aubree’s May 16th visit was for Dr. Nelson to follow up on her gastrointestinal
issues, which he testified were improved with medication. There is a notation in Aubree’s
medical records from the May 16, 2019 visit that indicates “bruising” in the “other concerns
I would like to discuss” section of Dr. Nelson’s notes, but Dr. Nelson testified that he did
not see that notation in the record, and he did not recall the parents or Grandmother telling
him that bruising was a concern. Mother claims she discussed the bruising with Dr. Nelson
during this visit, and he was not concerned and told her Aubree was “fine,” so she trusted
his opinion as Aubree’s primary physician. Mother further testified that, during the May
16, 2019 visit, she and Dr. Nelson discussed Nurse Reeder’s concerns about possible lead
poisoning; however, there is no indication in Dr. Nelson’s records that Mother, Father, or
Grandmother spoke to him about lead poisoning or bruising issues. In his testimony, Dr.
Nelson was adamant that neither parent mentioned any concern about bruising. Dr. Nelson
stated that, if he had observed or been told of bruising, he would have requested an
explanation from the parents. If they could not explain the bruising, then Dr. Nelson would
have ordered an x-ray. Dr. Nelson acknowledged that unexplained bruising on a child could
be indicative of neglect and abuse, and he further stated that he had personally encountered
this during his residency. If he had been made aware of bruising on a two-month-old child,
5
At trial, Mother first testified that she had not seen bruising on the Child prior to the two days
before her May 8, 2019 visit to the Health Department. However, after being impeached with her testimony
from just a week prior, Mother admitted that she had seen “pea-sized” bruising on the Child when she was
about a month old.
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who cannot crawl or move about on her own, this would have caused him to do a much
more thorough, head-to-toe examination.
On May 18, 2019, when Aubree was 10-weeks old, Mother was at work when she
received a call from Father. Mother explained that Father was crying and upset, and he
told her that something was wrong with Aubree. Mother testified that she was “terrified”
because she did not know what was wrong with the Child. Mother left work immediately
and called Grandmother in route. Mother arrived home to find Father “screaming, crying
and just not normal,” “standing over” Grandmother, who was holding Aubree and trying
to calm her. Father explained that Aubree’s arm “popped” when he was taking her out of
the bassinet, that it “got caught,” and he thought it was broken. Mother and Father took
Aubree to the Livingston Hospital Emergency Room, where Aubree’s arm was x-rayed
and found to be broken. DCS was contacted.
Child Protective Service Investigator Harli Langford, who specializes in severe
abuse cases, was assigned to the case. CPSI Langford went to Livingston Hospital where
she interviewed the parents separately.6 Both parents denied knowing how Aubree
sustained a broken arm. Neither parent reported any concerns about Aubree or gave any
information to CPSI Langford about Aubree’s relevant medical history, including the fact
that Aubree had been seen by Dr. Nelson and Nurse Reeder. Neither parent mentioned
Nurse Reeder’s concern over bruising and possible lead poisoning. CPSI Langford
testified that the parents’ failure to disclose this information was a “a red flag.” CPSI
Langford also testified that Mother denied having any concerns about her relationship with
Father, his care of Aubree, or his parenting style.
Because it is very uncommon for an infant Aubree’s age, who is immobile, to sustain
a broken bone and because Livingston Hospital personnel could not determine the cause
of Aubree’s broken arm, the team at Livingston Hospital recommended that Aubree
undergo a full medical evaluation by Vanderbilt Hospital’s CARE Team.7 CPSI Langford
asked Mother and Father to take Aubree to Vanderbilt for the CARE Team evaluation on
May 20, 2019, but they failed to show up for the appointment because Mother was not
feeling well and Father had worked late and was too tired to drive to Nashville. Mother and
Father eventually took Aubree to Vanderbilt on May 22, 2019. The record indicates that
Father was not alone with Aubree between May 18, 2019 (when she was seen at Livingston
6
CPSI Langford also worked with Overton County Sheriff Department Detective Ralph Mayercik
during her investigation. It is customary for CPSI Langford to work side-by-side with law enforcement in
alleged severe abuse cases to perform the investigation and share information. Detective Mayercik
interviewed Aubree’s babysitter and Grandmother, and neither provided information as to how Aubree
sustained a fractured arm.
7
The CARE Team is a group of doctors and social workers who evaluate complex cases. When
the Team does a consult on a child, they perform a full skeletal scan, complete blood work, meet with the
parents and gather detailed historical information about the events leading up to the injury, review and
discuss findings, and make recommendations as to how they think the injury occurred.
-4-
Hospital) and May 22, 2019 (when she was seen at Vanderbilt); however, Mother and
Grandmother were alone with Aubree during this time period.
At Vanderbilt, Aubree underwent a full medical evaluation. A skeletal survey
showed multiple fractures in different stages of healing. There were fractures of the ribcage
on the anterior left third, fifth, sixth, and seventh ribs. Possible fractures of the ribcage were
also noted at the anterior left fourth and ninth levels. On the posterior, left side of the
ribcage, fractures were identified at the third, tenth, and eleventh ribs, and possibly the
fourth, fifth, seventh, and eighth. On the anterior, right-side fractures of the third, fifth, and
sixth ribs were observed, with possible fractures of the eighth and ninth ribs. On the
posterior, right-side, acute or “new” fractures of the third, fourth, fifth, sixth, and seventh
ribs were identified. Doctors also found an irregularity of the left distal femur, which
strongly suggested an evolving fracture. Aubree’s distal right tibia had a “bucket handle
fracture” near the ankle. Imaging studies revealed a probable fracture of the left proximal
tibia near the knee. Aubree’s forearm had been placed in a cast by the Livingston Hospital
doctors, and the cast was still present when she was seen at Vanderbilt’s emergency room.
The skeletal scan taken at Vanderbilt showed lineal fractures in the two bones of her
forearm near the elbow. In addition to these fractures, Aubree had some distention of the
abdomen with fluid and gas. In sum, the Vanderbilt examination showed “[m]ultiple rib
fractures in various stages of healing, as well as bucket-handle fractures metaphyseal
fracture of the left proximal tibia and possibly the left distal femur.” The doctor noted that
“these fractures in a 10-week-old are highly consistent with non-accidental injury.” In
addition to the x-rays and skeletal scans, Vanderbilt resident physician, Dr. Christopher
Daly, performed a physical examination of the Child. Dr. Daly noted that the Child was
“well-appearing,” with her left arm wrapped in soft gauze, and with no other injury or
bruising, but she was positive for joint swelling. Dr. Daly noted that the skeletal scan
showed multiple fractures that were consistent with non-accidental trauma. The CARE
Team also obtained various types of labs, bone tests, and a head CT scan, which were all
normal. They also consulted with DCS. While Aubree had no acute surgical need, she
required further workup and CARE Team evaluation. Due to safety concerns, the Child
was admitted to the hospital. The final admitting diagnosis was “non-accidental trauma
injury.”
In addition to examining and treating the Child, due to the suspected abuse/neglect,
the police were contacted, and a Vanderbilt social worker conducted a psychosocial
assessment. Mother, Father, and Grandmother participated in the assessment. According
to Vanderbilt’s records, both parents reported that Mother was at work and Father was at
home when the injury to Aubree’s arm occurred. Mother reported that when she got home,
“she knew something was wrong,” that Father “told me what he had done,” and that they
sought medical care immediately. Father told the social worker that Aubree’s left arm
fracture was “a freak accident.” He stated that “it just happened,” and that he heard a “pop”
when he took Aubree from her bassinet. Father went on to explain that, when he placed
Aubree on the bed, he noted that she was not moving her left arm; Father then tried to
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manipulate her arm and felt it “snapping like a piece of chalk.”
Mother also told the social worker that Aubree “cried and cried” for the first month
of her life, that it was “constant,” and that she was “fussy all the time.” Mother explained
that she thought “something is wrong with my baby,” and reported that she discussed these
concerns with Aubree’s pediatrician. Father also reported that Aubree was “real fussy,”
“did not like being held,” and was often placed in a swing. He further reported that Aubree
often appeared to “breathe hard” and would “jerk,” which would “start her crying.”
Both parents denied any known mechanism for Aubree’s additional injuries. When
asked about Aubree’s medical history, the only medical problem that Mother and Father
reported was acid reflux. Both parents further denied any: (1) known history of injury,
trauma and/or fall; (2) safety concerns in the home; (3) history of domestic violence; (4)
prior DCS involvement; (5) substance abuse; (6) history of mental illness; and (7) criminal
activity. The social worker noted that, when Father was informed of Aubree’s additional
injuries that were discovered by the Care Team, he appeared to cry with no tears and
expressed concern that he would be “blamed,” “interrogated,” and “called a liar.” The
social worker relayed the foregoing information to CPSI Langford and Detective Mayercik.
Due to concerns of abuse and neglect, Dr. Heather Williams, an Assistant Professor
of Clinical Pediatrics at Monroe Carell, Jr. Children’s Hospital at Vanderbilt and a board-
certified physician in child-abuse pediatrics, also met with Mother and Father. Dr. Williams
explained that her practice involves seeing child abuse and neglect cases and supervising
nurses who handle child sexual abuse cases. Her specialty is assessing a child’s injuries to
determine whether they result from non-accidental trauma or accident. Dr. Williams was
admitted as an expert in child abuse pediatrics without objection.
Mother and Father generally told Dr. Williams the same story concerning Aubree’s
broken arm. They also denied any previous bruising, and failed to mention Nurse Reeder’s
concerns about possible lead poisoning. However, neither parent could explain how the
Child sustained approximately 15 fractures in the first two-months of her life. Based on
her consultation and review of the Child’s medical records, Dr. Williams opined that there
was “no accidental mechanism of injury” that could explain Aubree’s injuries. Dr.
Williams explained that Father’s statements were “inadequate to explain” the Child’s
injuries. She also noted that Aubree’s injuries were in different stages of healing, which
indicate that the Child had been injured on multiple occasions. In her deposition, which
was admitted at trial, Dr. Williams testified that “rib fractures and CMLs are highly specific
for abusive mechanisms of injury,” and such injuries are consistent with the diagnosis of
child physical abuse. Dr. Williams testified that “not all fractures are created equal,” and
that bucket-handle fractures are caused one of two ways: from tension strength (i.e., a
“forceful yanking” of an extremity “with a little bit of a twist”) or “a shearing force” (i.e.,
the “forceful flailing of the arms and legs”). Concerning the injuries to Aubree’s ribs, Dr.
Williams testified that rib fractures are caused either by blunt-force trauma to the chest or
-6-
from compressive forces. Because such injuries do not ordinarily occur with immobile
infants, Dr. Williams explained that, when an immobile infant has multiple fractures and a
caregiver does not have a plausible explanation as to how they occurred, “it is extremely
concerning for non-accidental trauma.” Nonetheless, Dr. Williams considered whether
Aubree might suffer from any metabolic bone conditions or genetic conditions that might
cause her bones to break more easily. However, no underlying bone conditions were
identified that could explain Aubree’s injuries as “pathologic fractures.” Dr. Williams
observed that the fact that Aubree sustained no fractures during the eighteen months she
had been in DCS custody further validated her opinion that there were no underlying bone
diseases that might cause Aubree’s bones to fracture more easily than other children’s. Dr.
Williams testified unequivocally that Aubree would have felt pain from an un-splinted
fracture, and would have been fussy and difficult to soothe, especially when the affected
bone was moved or touched. Pain would likely also cause changes in the Child’s feeding
and sleeping habits. According to Dr. Williams, these pain reactions would have been
noticeable to Aubree’s caregivers. Dr. Williams recommended a follow-up skeletal survey
and noted that the report to DCS alleging physical abuse was appropriate.
Vanderbilt performed a follow-up skeletal survey approximately two weeks after
Aubree’s initial skeletal scan. The follow-up skeletal survey confirmed multiple fractures,
including some that were not evident on the initial scan. The follow-up scan also showed,
in greater detail, the evolution and healing of the Child’s injuries. Dr. Williams diagnosed
Aubree with child physical abuse.
To treat her injuries, Aubree was seen by the orthopedic department at Vanderbilt
on May 23, 2019. ACE wraps were applied to her left upper, right lower, and left lower
extremities. The orthopedic surgeon did not recommend casts or splints given Aubree’s
age and activity level, and so the ACE wraps were applied solely for comfort. The
orthopedist further noted that the family gave “vague history and inconsistent stories” and
could not “give any kind of reasonable explanation as to how these injuries happened.”
Accordingly, he recommended a “thorough conversation with the family.”
Turning to DCS’s dependency and neglect investigation, CPSI Langford testified
that, after Aubree was seen at Vanderbilt on May 22, 2019, Vanderbilt called CPSI
Langford and told her, “This baby is broken.” Based on Vanderbilt’s assessment that
Aubree was the victim of non-accidental trauma and the fact that some of the Child’s
injuries dated back to when she was only two-weeks old, DCS filed a Petition to Declare
Child Dependent and Neglected and For Emergency Temporary Legal Custody. Before
Aubree was released from Vanderbilt, the juvenile court entered a Protective Custody
Order, and Aubree was released to DCS custody on May 23, 2019.
On May 23, 2019, DCS held a meeting with Mother, Father, and law enforcement.
Randal Slayton, a criminal investigator with the District Attorney’s Office for the 13th
Judicial District, was asked to assist Detective Mayercik with an on-going investigation
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into Aubree’s injuries and conducted an interview with Father at the DCS office.
Investigator Slayton noted that during the interview, Father was worried and afraid that he
was going to be blamed for Aubree’s injuries, but he was still willing to talk to Investigator
Slayton. Investigator Slayton started the interview by reading Father his rights and getting
background information about Aubree’s care. Father explained that he and Mother shared
parenting responsibilities—one parent would take care of Aubree while the other was
working. However, Mother was on maternity leave for the first four weeks of Aubree’s
life; about three weeks before Aubree sustained the arm injury, they started using a
babysitter. Father candidly stated that he was often tired when he cared for Aubree because
he worked 12-hour shifts, was gone from the home for approximately 16-hours a day, and
then was tasked with caring for Aubree when he came home. Father stated that he would
sleep when he could. Investigator Slayton testified that, in his experience investigating
child abuse cases, a very tired parent caring for a child sets a dangerous scenario. Regarding
Aubree’s broken arm, Father told Investigator Slayton that he picked Aubree up from her
bassinet, heard something pop, laid her down on a changing table, and noticed she was not
moving her arm, so he lifted her arm to investigate, and she pushed back, at which time, it
felt like chalk breaking. He also demonstrated how he grabbed her by grabbing Investigator
Slayton’s arm and demonstrating using a pencil, and he used a wrenching motion. This
caused Investigator Slayton concern and explained the likelihood that what happened to
Aubree was physical abuse. Father also stated that Mother had told him that Aubree’s
shoulders had been popping.
Regarding the Child’s rib fractures, Investigator Slayton informed Father that
squeezing is what typically causes rib injuries in children. Father then stated that when
Aubree was about one-month old, he was tired and agitated, and lifted Aubree out of her
swing, turned her sideways, and squeezed her, and that this happened more than one time.
Aubree did not cry when Father squeezed her but would cry “whenever he let pressure off.”
Father told Investigator Slayton that this happened when Mother was not home. Regarding
Aubree’s bucket-handle leg fracture, Investigator Slayton told Father that these types of
injuries typically result from “a pushing-pulling motion.” Father then stated that on one
occasion, he was changing Aubree’s diaper, she was “mad, angry, kicking,” she kicked her
leg out, and he pushed her leg back. Father stated that he never saw any bruises or marks
on Aubree.
Investigator Slayton testified that, although Father denied causing Aubree’s injuries,
he “believed everything [Father] said,” and considered Father’s statements to be an
admission of guilt.8 Investigator Slayton testified that, by the end of the interview, Father
was most concerned about how to tell Mother what happened in the interview. Investigator
Slayton offered to help and took Father to the room where Mother was located. Investigator
8
Father was criminally charged relating to Aubree’s injuries. Father testified at trial but plead the
5th Amendment in response to every question asked. At the time of trial, Mother and Father were no longer
together.
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Slayton gave Mother a brief synopsis of what Father had stated during the interview. Father
told Mother that Investigator Slayton made him realize what he had done to Aubree—that
he was angry, did not get enough sleep, might have squeezed Aubree too hard, and that “he
was the one who did this to her.” According to Investigator Slayton, Mother was shocked
at first, but her response was largely to console Father and to tell him that they would get
him some help. At trial, Mother testified that after Investigator Slayton’s interview with
Father, she believed he caused all of Aubree’s injuries. However, she also testified that she
did not suspect anything because she did not think he was capable of hurting Aubree; she
“never would have thought” that he would have hurt Aubree; she was “shocked that he
would ever do something like that,” and she did not want to believe it since he had always
been a “good dad” and good partner to her. Mother felt angry, “had a lot of emotions,” and
was confused.
DCS Family Service Worker Jennifer Leftwich was assigned to Aubree’s case
within a week of her removal and remained assigned to the case through trial. FSW
Leftwich supervised Mother’s first visit with Aubree, after she was discharged from
Vanderbilt. FSW Leftwich explained that Aubree was brought to the visit in a baby carrier
with her arms and legs were wrapped, and that that “it was an intense sight to see . . . this
baby so small wrapped in all these bandages.” Although this was the first time Mother had
seen Aubree since Aubree was admitted to Vanderbilt, FSW Leftwich stated that Mother
had “no reaction at all, none, no, none,” which was very odd to FSW Leftwich because “it
took [her] breath” to see the baby. FSW Leftwich also had to intervene because Mother
was holding Aubree in a manner that would have been painful to the Child in light of her
broken bones. FSW Leftwich subsequently requested that Aubree receive therapeutic
visitation, which is a service provided by DCS to allow for closely supervised and
monitored visits, with parental assistance and intervention when necessary. According to
FSW Leftwich’s testimony, Mother attended each of the scheduled visits.9
DCS worked with Mother to develop a permanency plan, which was created on May
20, 2020 and ratified on June 3, 2020. Under the plan, Mother was required to complete a
psychological evaluation and to follow all recommendations thereof. Scott Herman, MA,
a licensed professional counselor and licensed senior psychological examiner, conducted
four of the five psychological exams Mother attended. Mr. Herman testified that the
psychological exams he conducted were “invalidated” due to Mother’s unreliable
responses, including “faking good” on the child abuse potential inventory (CAPI). The
fifth and final psychological test, which was conducted by Catherine Grello, was not
invalidated and indicated that Mother has “characteristics of know[n] physical child
abusers.” Dr. Grello recommended that Mother undergo “intense counseling with a Ph.D-
9
The Department was relieved from providing reasonable efforts due to the severe abuse finding
entered by the juvenile court on November 26, 2019, and thus Mother was making her own visitation
appointments. Although it was not required to do so, DCS continued to provide therapeutic visitation
between Mother and Aubree up to the time of trial.
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level or skilled-master-level therapist,” and that she complete a psychiatric evaluation for
depression and anxiety. In response to Dr. Grello’s recommendation (and as approved by
the trial court), in June 2020, Mother attended weekly treatment with Jerri Cross, a licensed
professional counselor. Ms. Cross testified at a deposition in this matter, during which the
parties stipulated that she was testifying as an expert in mental-health counseling and
treatment. Ms. Cross’ deposition was admitted into evidence at the hearing. Ms. Cross
diagnosed Mother with “major depressive disorder recurrent moderate,” “parent child
relational problems,” and “problems related to other legal circumstance.” Although Mother
testified that her depression was “situational,” Ms. Cross testified that “her depression
appears to not necessarily be situational; it was present in her first marriage, during the
domestic violence, and then in her [relationship with Father].” Ms. Cross recommended
the following treatments and goals: stress management, understanding and addressing
depression, addressing and understanding domestic violence and toxic relationships,
recognizing signs and symptoms of child abuse, understanding the seriousness of the
allegations, safety planning for herself and Aubree, red flags in relationships, establishing
healthy boundaries and healthy relationships, and positive coping skills. Ms. Cross also
addressed Mother’s romantic relationships. During each visit, Ms. Cross asked Mother
whether she was in a relationship. Mother admitted to having at least three boyfriends
during the pendency of the dependency-and-neglect proceedings. In the fall of 2020,
Mother was involved with Michael B. FSW Leftwich testified that she was concerned
about this relationship and advised Mother that Michael B. had a history with DCS of
environmental neglect and substance abuse issues involving his own children.
Furthermore, FSW Leftwich advised Mother that Michael B.’s brother was listed on the
sex-offender registry. Mother testified that she discussed her relationship with Michael B.
with Ms. Cross and was “proud” that she broke up with him after learning about his brother.
Ms. Cross ultimately opined that, although Mother was participating and
progressing in her therapy, this fact did not mean that reunification should occur. In view
of the severe abuse finding and because she could not make a clear determination that the
Child would be safe with Mother, Ms. Cross explained that she could not recommend
reunification. Furthermore, Ms. Cross testified that she was very concerned about the
invalid psychological assessments performed by Mr. Herman because it is very “unusual”
for psychological assessments to be consistently invalid. Ms. Cross explained that she was
concerned that, if Mother was not being honest in her evaluations and counseling sessions,
the “progress” Ms. Cross saw in Mother could possibly be fake.10
Regardless, despite the fact that FSW Leftwich discussed the need to undergo a
psychiatric consult with Mother on at least five occasions, it is undisputed that Mother
failed to complete a valid psychiatric assessment before the trial. FSW Leftwich testified
that the psychiatric assessment was the most important action item because it was
10
Approximately one month before trial, Mother filed a motion to change counselors because she
felt that Ms. Cross was not truthful in her reports to the court.
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imperative that Mother address her mental health issues before DCS could make a
recommendation for reunification. Despite her failure to complete the necessary
assessment, Mother testified that she did not believe that she had done anything wrong
regarding Aubree. FSW Leftwich testified that Mother has never: (1) accepted
responsibility for Aubree’s injuries; (2) indicated that she could have done something more
to protect her, or (3) indicated in any manner that she had any regret over what happened
to Aubree. The only thing Mother said to FSW Leftwich regarding Aubree’s injuries was
that she did not physically harm Aubree. Likewise, Ms. Cross testified that “from the very
onset of the case,” Mother “indicated that she had no culpability in the case,” and “seemed
very unaware” that she had been found as a perpetrator of severe child abuse. Mother
consistently told Ms. Cross that she had no involvement in what happened to Aubree, that
Father was responsible for Aubree’s injuries, and that Mother was at work when it
happened. However, due to the timing of Aubree’s injuries, i.e., her fractures were in
various states of healing, CPSI Langford testified that it would be “very, very, very
unlikely” that Mother was not present when Aubree sustained at least some of the injuries,
especially since she was Aubree’s primary caregiver during the time period when these
injuries occurred. Furthermore, Father told FSW Leftwich that Mother was often
overwhelmed by caring for Aubree, and often called Father at work so he could calm her
down. Father also told FSW Leftwich that he was the only one who could soothe Aubree
and that, if she could not be placed with him, he would rather her be adopted than placed
with Mother.
Since she came into DCS custody at approximately 10-weeks old, Aubree has lived
with her foster parents and their three children. FSW Leftwich testified that Aubree “does
very well there,” and it “is the only home she knows.” Aubree is also bonded with her
foster siblings. After being removed to DCS custody, Aubree underwent an evaluation by
Tennessee Early Intervention Systems to determine whether she was meeting
developmental milestones, and she was. Aubree was seen by a pediatrician, who also
determined that she did not have any developmental delays. Since Aubree was removed to
DCS custody, she has not sustained any broken bones.
Having entered a protective order on May 23, 2019, on October 9, 2019, the juvenile
court conducted an adjudicatory and dispositional hearing and issued a Memorandum
Opinion and Order finding that both Mother and Father had committed severe abuse against
Aubree. On January 22 and February 7, 2020, the juvenile court conducted a dispositional
hearing, and subsequently found that custody of Aubree should remain with DCS.
Both Mother and Father appealed to the Circuit Court of Overton County (“trial
court”) for a de novo hearing, which was conducted on May 24 and May 26, 2021. On
September 21, 2021, the trial court entered an order, wherein it made the following findings
of fact and credibility determinations:
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The Court credits Dr. Nelson’s testimony that [the parents] did not tell him
of bruises on Aubree. The evidence at trial provided no solid explanation for
the absence of the letter from Nurse Reeder in Dr. Nelson’s records, but the
Court credits Nurse Reeder’s testimony that she did, in fact, send that letter
to Dr. Nelson.
After professing great concern about the bruising on Aubree in Nurse
Reeder’s presence during the May 8, 2019 physical examination at the
Overton County Health Department, [the parents] did not promptly follow
up with Dr. Nelson. Instead, they waited eight full days to see Dr. Nelson.
Even then, they did not speak to him about any concern about bruising.
Neither did the parents discuss with Dr. Nelson any concern about possible
lead poisoning or request further testing, as instructed by Nurse Reeder. Dr.
Nelson’s records contain no notation regarding any request for testing of lead
and hemoglobin. It is reasonable to conclude that the lapse of eight days
between the examination by Nurse Reeder and the May 16th office visit with
Dr. Nelson provided time for the bruises to resolve. Tellingly, when asked
about her communication with Dr. Nelson about the bruising, [Mother]
responded that the bruises were “more than likely not visible at the time.”
This indicates awareness on [Mother’s] part about the visibility of the bruises
and further suggests that the delay in following up with Dr. Nelson was
intentional.
[Mother] testified that she spoke to Dr. Nelson about her concerns
about bruising on Aubree at the May 16, 2019 office visit. When asked what
Dr. Nelson’s response was when she brought the bruising to his attention,
[Mother] replied that Dr. Nelson had no significant concerns. The Court finds
[Mother’s] testimony entirely implausible on this point, contrary to Dr.
Nelson’s firm testimony, and inconsistent with standard medical practice (as
explained by both Dr. Williams and Dr. Nelson) when unexplained bruising
is found on a non-mobile infant of Aubree’s age.
***
After [Father’s] interview with Officer Slayton on May 23, 2019, there was
an encounter at the offices of the Department of Children’s services between
[the parents]. Investigator Slayton testified that, after the interview, [Father]
seemed most concerned about telling [Mother] about the interview. He
walked into the adjacent room where [Mother] had been waiting and told her
that Investigator Slayton “made him realize what he had done to Aubree.”
[Father] also said that he thought there was something wrong with him and
that he had some sort of mental health problem. Slayton and Harli Langford
both testified that [Mother] did not ask [Father] how he had caused harm or
injuries to [Aubree]. Instead, [Mother] reacted lovingly and consoled
[Father], saying, “We’ll get you some help.” [Mother] also stated that
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[Father] could not get the help he needed if incarcerated. After hearing
[Father] taking responsibility for Aubree’s injuries, [Mother] went back
home with [Father]; the two went out to dinner and bought an outfit for
Aubree. Later on the evening of May 23rd, [Grandmother] called Harli
Langford and asked her to persuade [Mother] that [Father] must leave the
home. [Mother] admitted that, in the six days that the two remained together,
between May 18 and May 23, 2019, she never asked [Father] what he had
done to cause injury to their child. The Court finds this to be an
incomprehensible response from the mother, and her lack of inquiry suggests
that she already had some knowledge about how and by whom the injuries
were inflicted.
In its Petition, the Department of Children’s Services asked to remove
Aubree from the custody of both her mother and her father because, as DCS
Investigator Harli Langford testified, it could not be determined which parent
inflicted the non-accidental trauma upon Aubree. Department of Children’s
Services Case Worker, Ms. Jennifer Leftwich, took over the case on or about
May 30, 2019. She testified that a visit was arranged for [Mother] with
Aubree on May 30th. This was the mother’s very first visit with Aubree after
removal. Aubree was in her infant carrier, with her arms and legs encased in
soft casts. Ms. Leftwich testified that when [Mother] saw her child, there was
no emotional reaction at all, no tears, no expressions of sympathy for
Aubree’s condition, no loving or hugging. Ms. Leftwich testified that she
found [Mother’s] lack of emotion and flat affect to be strange, “very distinct
in her experience,” and not what is usually expected during the reunion of a
loving mother with an injured child. During the visit, Ms. Leftwich found it
necessary to intervene and correct [Mother] because she was holding her
injured infant in a position “sitting and leaning forward” that would have
obviously caused pain to the child after having suffered multiple rib
fractures.
Ms. Leftwich testified that, in her interactions with [Father] after
Aubree’s removal and placement in foster care, he expressed concern about
Aubree returning to the custody of [Mother]. [Father] went so far as to tell
Ms. Leftwich that he would rather that Aubree be adopted than return to her
mother’s care and custody. [Father] told Ms. Leftwich that he was typically
the only one who could comfort or soothe Aubree when she was crying. He
also told Ms. Leftwich that several times, when he was out of town working
on a construction job, he would receive calls from [Mother] who was stressed
and overwhelmed at home alone with Aubree. On such occasions, he told
Ms. Leftwich, he would have to calm [Mother] down over the phone.
The Court finds the testimony of Ms. Jennifer Leftwich and Ms. Harli
Langford very credible. Both Ms. Leftwich and Ms. Langford testified about
their significant interactions with [the parents] after Aubree[’s] injuries came
to the attention of the Department of Children’s Services. Neither parent ever
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offered to Ms. Leftwich or Ms. Langford any history or explanation of the
bruises on Aubree.
At trial, the Court also heard the testimony of [Grandmother]. . . . The
Court finds [Grandmother’s] testimony to be generally credible regarding her
observations about her granddaughter, Aubree []. [Grandmother] testified
that she saw Aubree almost every day and that Aubree cried a lot, like a baby
suffering from colic. [Grandmother] was also aware that Aubree was
screaming at night. Importantly, [Grandmother] testified that she noticed
bruising on Aubree’s torso, some on Aubree’s back and some on her front,
as if someone had “picked her up or held her wrong.” [Grandmother]
indicated that the bruises looked like they could have been caused by the ends
of fingers. She could not make out any handprint. [Grandmother] testified
that [Mother] brought the bruising on Aubree to her attention when Aubree
was about two months old. [Grandmother] further testified that [Mother] told
her she had seen previous bruising on Aubree’s bottom. This is inconsistent
with other portions of [Mother’s] testimony about when she observed bruises
on Aubree and the location of such bruises.
***
The court finds that [Mother] is not a credible witness. There were
many aspects of her testimony at trial that the Court found unbelievable and
unpersuasive. First, and most importantly, [Mother’s] testimony was
generally evasive and equivocal. She contradicted her own testimony at this
trial and at previous hearings. In every respect, and at every opportunity,
[Mother] externalized any responsibility for what happened to her child. It
was undisputed that Aubree [] spent the great majority of time in [Mother’s]
care, since [Father] worked twelve-hour shifts and often had an additional
four hours of travel with his road construction job. [Mother’s] tendency to
blame others was notable in her blaming Dr. Nelson for not picking up on
indications of possible abuse. [Mother] repeatedly voiced the view that she
was completely exonerated because of the “admission” of responsibility that
[Father] made to Investigator Slayton. [Mother] also asserted that Ms. Jerri
Cross was not being truthful in her deposition testimony; she blamed Ms.
Cross for not giving the picture [of] her condition and actions post-removal
that [Mother] would wish. This Court recognizes [Mother’s] propensity to
foist blame on others and is unpersuaded by her professions to be without
knowledge or responsibility regarding the injuries that her child suffered.
Based on the foregoing findings, and as discussed in further detail below, the trial
held that Aubree was dependent and neglected in that both Mother and Father were unfit
to care for her, neglected or refused to provide Aubree with medical care, injured and
endangered Aubree’s health, and committed abuse and neglect. The trial court also found
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that both Mother and Father committed severe child abuse in that they “knowingly failed
to protect the child from abuse and neglect that is likely to cause serious injury or death.”
Mother appeals.
II. Issues
Mother raises the following issues for review as stated in her brief:
1. Whether or not the Court abused its discretion in finding that there was
clear and convincing evidence that the minor child Aubree, is dependent and
neglected as defined by T.C.A. 37-1-102 (12).
2. Whether or not the Court abused its discretion in finding that the minor
child is a victim of severe child abuse as defined by T.C.A. 37-1-102,
subsection (B) (27) under subsections (A), (B) and (C).
3. Whether or not the Court abused its discretion in finding that it is in the
best interest of Aubree to remain in Foster Care.
III. Standard of Review
This Court has explained that
[a] child who is suffering from abuse is a dependent and neglected child. See
Tenn. Code Ann. § 37-1-102[(b)](1[3] )(G). A determination that a child is
dependent and neglected must be supported by clear and convincing
evidence. See Tenn. Code Ann. § 37-1-129(a)(1) & (c). Severe child abuse
in a dependency and neglect proceeding must also be established by clear
and convincing evidence. In re S.J., 387 S.W.3d 576, 591 (Tenn. Ct. App.
2012).
The “clear and convincing evidence standard” is more exacting than
the “preponderance of the evidence” standard, although it does not demand
the certainty required by the “beyond a reasonable doubt” standard. In re
C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000). The clear and
convincing evidence standard defies precise definition. Majors v. Smith, 776
S.W.2d 538, 540 (Tenn. Ct. App. 1989). Evidence satisfying this high
standard produces a firm belief or conviction regarding the truth of facts
sought to be established. In re C.W.W., 37 S.W.3d at 474. Clear and
convincing evidence eliminates any serious or substantial doubt concerning
the correctness of the conclusions to be drawn from the evidence. Hodges v.
S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992).
Our review of the trial court’s determinations on questions of fact is
de novo with a presumption of correctness, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d). Whether a child has been
proven dependent and neglected by clear and convincing evidence is a
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question of law which we review de novo without a presumption of
correctness. In re H.L.F., 297 S.W.3d 223, 233 (Tenn. Ct. App. 2009).
In Re Zaliyah S., et al., No. M2019-01241-COA-R3-JV, 2020 WL 3494471, *3 (Tenn. Ct.
App. June 26, 2020) (citing In re M.D., No. M2015-01023-COA-R3-JV, 2016 WL
5723954, at *3-4 (Tenn. Ct. App. Sept. 30, 2016) (quoting In re Kaitlynne D., No. M2013-
00546-COA-R3-JV, 2014 WL 2168515, at *1-2 (Tenn. Ct. App. May 21, 2014)).
Furthermore, to the extent that Mother’s issues require interpretation of the
dependency and neglect statutes, we are guided by the familiar rules of statutory
construction. “The most basic principle of statutory construction is to ascertain and give
effect to the legislative intent without unduly restricting or expanding a statute’s coverage
beyond its intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (citing
State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993)). “The text of the statute is of primary
importance.” Mills v. Fulmarque, 360 S.W.3d 362, 368 (Tenn. 2012). A statute should be
read naturally and reasonably, with the presumption that the legislature says what it means
and means what it says. See BellSouth Telecomm’ns., Inc. v. Greer, 972 S.W.2d 663, 673
(Tenn. Ct. App. 1997).
Finally, as set out in context above, the trial court made specific findings concerning
the credibility of certain witnesses. With regard to credibility determinations, this Court
has stated:
When a trial court has seen and heard witnesses, especially where issues of
credibility and weight of oral testimony are involved, considerable deference
must be accorded to the trial court’s factual findings. Further, “[o]n an issue
which hinges on the credibility of witnesses, the trial court will not be
reversed unless there is found in the record clear, concrete, and convincing
evidence other than the oral testimony of witnesses which contradict the trial
court’s findings.”
In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals v. England/Corsair
Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)). In the context of
dependency and neglect actions, “[t]o the extent the trial court’s determinations rest upon
an assessment of the credibility of witnesses, the determinations will not be overturned
absent clear and convincing evidence to the contrary.” In re Zaliyah S., 2020 WL
3494471, at *3 (citing Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.
1999)).
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IV. Analysis
A. Dependent and Neglected Child Finding
As is relevant to this appeal, Tennessee Code Annotated section 37-1-102(b)(13)
defines a “dependent and neglected child” as one: (1) “[w]hose parent, guardian or person
with whom the child lives, by reason of cruelty, mental incapacity, immorality or depravity
is unfit to properly care for such child,” Tenn. Code Ann. § 37-1-102(b)(13)(B); (2)
“[w]hose parent, guardian or custodian neglects or refuses to provide necessary medical,
surgical, institutional or hospital care for such child,” Tenn. Code Ann. § 37-1-
102(b)(13)(D); (3) “[w]ho is in such condition of want or suffering or is under such
improper guardianship or control as to injure or endanger the morals or health of such child
or others,” Tenn. Code Ann. § 37-1-102(b)(13)(F);and (4) “[w]ho is suffering from abuse
or neglect.” Tenn. Code Ann. § 37-1-102(b)(13)(G). Tennessee Code Annotated section
37-1-129(b)(2) states, in relevant part, that, “[i]f the petition allege[s] the child was
dependent and neglected as defined in § 37-1-102(b)(13)(G) . . . the court shall determine
whether the parents or either of them . . . committed severe child abuse.” If a child is the
victim of severe child abuse, she is dependent and neglected. Tenn. Code Ann. § 37-1-
102(b)(13)(G).
In its September 21, 2021 order, the trial court found Aubree to be a dependent and
neglected child under the four definitions enumerated above. We will address the trial
court’s finding of dependency and neglect by severe child abuse in detail below. However,
we first address the trial court’s findings of dependency and neglect under the definitions
set out at Tennessee Code Annotated sections 37-1-102(b)(13)(B), (D), and (F).
First, the trial court found that Aubree “is a dependent and neglected child, with
respect to both of the respondent parents, within the meaning of T.C.A. § 37-1-
102(b)(13)(B), in that she is a child ‘[w]hose parent . . . by reason of cruelty, mental
incapacity, immorality, or depravity is unfit to properly care for such a child.’”
Specifically, the trial court held:
The testimony of Dr. Heather Williams demonstrated conclusively that [the
Child] had been subjected to non-accidental trauma that caused
approximately seventeen fractures at varying times within the first two
months of her life. Significant force was applied to Aubree’s small body in
order to inflict these multiple injuries. Upon discovery of the many fractures
in many different stages of healing, neither parent offered Dr. Williams any
persuasive explanation for how these injuries occurred. It was
uncontroverted that [the parents] were the persons who had caregiving
responsibility for Aubree and who were most familiar with her habits and
needs. Any responsible, prudent caregiver dealing with a non-mobile infant
with a history of bruising, who was difficult to hold and soothe, and who was
- 17 -
“screaming at night” would have recognized that something was severely
wrong. Neither parent provided any plausible explanation of prior bruising
upon Aubree, although testimony from numerous witnesses established that
they were aware of prior bruising. Based on the evidence . . . the Court finds
that both [parents] engaged in conduct which placed Aubree at significant
and severe risk of harm and are unfit to properly care for their child.
Accordingly, [the Child] is a dependent and neglected child within the
meaning of T.C.A. § 37-1-102(b)(13)(B). The Court makes this finding by
clear and convincing evidence.
Next, the trial court found, by clear and convincing evidence, that Aubree “is a
dependent and neglected child within T.C.A. § 37-1-102(b)(13)(D) in that she is a child
‘[w]hose parent . . . has neglected or refused to provide necessary medical, surgical,
institutional, or hospital care for such child.” Specifically, the trial court held that
the facts of this case demonstrate that the respondent parents knew, or should
have known, of the injuries to Aubree which were inflicted over a substantial
period of time. However, they failed to make serious medical inquiry about,
or timely follow up on, securing some diagnosis to explain the bruising upon
this non-mobile infant. The uncontroverted evidence reflects that there was
a medical appointment at which Nurse Megan Reeder observed bruising on
Aubree’s cheek and abdomen. At that time, Nurse Reeder discussed with the
parents a possible alternative cause for such bruising. Nurse Reeder
discussed with both parents the possibility of lead poisoning and encouraged
the parents to promptly consult their primary care [provider] for diagnostic
testing. Tellingly, the parents did not heed that advice, and did not take
Aubree to see Dr. Nelson until some eight days later. This is especially
curious because [Grandmother] was then employed at Dr. Nelson’s office
and could presumably have facilitated a prompt appointment. The Court
credits Dr. Nelson’s testimony that the parents did not discuss with him any
bruising upon their non-mobile infant in their appointment on May 16, 2019.
Had there been any prompt and responsible report of prior bruising, any
prompt and responsible follow up on the bruising noted at the May 8th
appointment at the Overton County Health Department, by either parent,
Aubree could have at least been spared the fracture to her arm.
The trial court also found, by clear and convincing evidence, that Aubree “is a
dependent and neglected child under subsection 37-1-102(b)(13)(F) in that she is in such a
condition of want or suffering, and is under such improper guardianship or control as to
injure and endanger [her] health . . . .”
In her appellate brief, Mother’s sole argument concerning the trial court’s findings
of dependency and neglect based on the statutory definitions set out at Tennessee Code
- 18 -
Annotated sections 36-1-113(b)(13)(B), (D), and (F) is as follows:
As to this issue [i.e., issue one concerning the trial court’s finding of
dependency and neglect], the Mother would aver that [] she was not aware
that the child was being abused by the father and had no idea of said abuse.
The Mother was only 23 years old and this was her first child. There is no
proof in the record that Mother willingly abused Aubree or willingly and
knowingly allowed Aubree to be abused or neglected by another.
Mother’s briefing is insufficient. Tennessee Rule of Appellate Procedure 27(a)(7) requires
an appellant’s brief to contain, inter alia,
[a]n argument, which may be preceded by a summary of argument, setting
forth: (A) the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the
contentions require appellate relief, with citations to the authorities and
appropriate references to the record (which may be quoted verbatim) relied
on; and (B) for each issue, a concise statement of the applicable standard of
review (which may appear in the discussion of the issue or under a separate
heading placed before the discussion of the issues) . . . .
Tenn. R. App. P. 27(a)(7). Tennessee Court of Appeals Rule 6(b) states that
No complaint of or reliance upon action by the trial court will be considered
on appeal unless the argument contains a specific reference to the page or
pages of the record where such action is recorded. No assertion of fact will
be considered on appeal unless the argument contains a reference to the page
or pages of the record where evidence of such fact is recorded.
Tenn. R. Ct. App. 6(b).
Concerning deficiencies in an appellate brief, this Court has previously
explained:
Our Courts have “routinely held that the failure to make appropriate
references to the record and to cite relevant authority in the argument section
of the brief as described by Rule 27(a)(7) constitutes a waiver of the issue[s]
[raised].” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000). In Bean,
we went on to hold that “an issue is waived where it is simply raised without
any argument regarding its merits.” Id. at 56; see also Newcomb v. Kohler
Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006) (holding that the failure of
a party to cite to any authority or to construct an argument regarding his or
her position on appeal constitutes waiver of that issue). As we stated in
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Newcomb, a “skeletal argument that is really nothing more than an assertion
will not properly preserve a claim.” Newcomb, 222 S.W.3d at 400. It is not
the function of this Court to verify unsupported allegations in a party’s brief
or to research and construct the party’s argument. Bean, 40 S.W.3d at 56.
Despite the fact that [the appellant’s] brief is woefully inadequate,
there are times when this Court, in the discretion afforded it under Tenn. R.
App. P. 2,11 may waive the briefing requirements to adjudicate the issues on
their merits.
Chiozza v. Chiozza, 315 S.W.3d 482, 487-89 (Tenn. Ct. App. 2009). Although the
argument section addressing Mother’s first appellate issue wholly fails to comply with the
requirements of Tennessee Rule of Appellate Procedure 27(a)(7) and Tennessee Court of
Appeals Rule 6(b), given the nature of this case, we conclude that it is appropriate to
exercise our discretion to waive the briefing requirements in order to adjudicate the issue
on its merits. See Tenn. R. App. P. 2.
As discussed in detail above, there is no dispute in the record that Aubree suffered
between 15 and 17 bone fractures by the time she was ten-weeks old. Furthermore, every
expert who testified opined that, from the medical evaluations, these injuries were the result
of non-accidental trauma that was perpetrated from the time of Aubree’s birth until she was
removed to DCS’ custody. It is also undisputed that Mother and Father were Aubree’s
primary caregivers and were periodically alone with her during the time period in which
she sustained the injuries. Given the extent of Aubree’s injuries, the fact that neither parent
could (or would) give any plausible explanation for how these injuries occurred, and the
medical testimony regarding what can only be described as a continual pattern of abuse
against the Child, there is ample evidence to support the trial court’s determination that
Aubree is a dependent and neglected child insofar as her Mother, “by reason of cruelty,
mental incapacity, immortality, or depravity is unfit to properly care for [her],” and insofar
as the Child was found to be “in such a condition of want or suffering, and [] such improper
guardianship . . . as to injure and endanger [her] health.” Tenn. Code Ann. §§ 37-1-
102(b)(13)(B), (F).
There is also clear and convincing evidence to support the trial court’s finding that
Aubree is dependent and neglected due to the fact that Mother “neglected or refused to
provide necessary medical . . . or hospital care.” Tenn. Code Ann. § 37-1-102(b)(13)(D).
As discussed in detail above, and based on the trial court’s factual and credibility findings,
it is clear that Mother failed to obtain prompt medical attention for Aubree. Mother ignored
11
Tennessee Rule of Appellate Procedure 2 provides, in relevant part, that
For good cause, including the interest of expediting decision upon any matter, the Supreme
Court, Court of Appeals, or Court of Criminal Appeals may suspend the requirements or
provisions of any of these rules in a particular case on motion of a party or on its motion
and may order proceedings in accordance with its discretion . . . .
- 20 -
Nurse Reeders’ recommendation for lead testing, and the record supports the trial court’s
finding that Mother failed to mention Nurse Reeders’ recommendation to Dr. Nelson. In
fact, Mother never mentioned the bruising concern to Dr. Nelson. In addition to
withholding this information from Dr. Nelson, Mother also delayed the Child’s visit with
Dr. Nelson for more than a week after seeing Nurse Reeder.
Even after it was apparent that Aubree sustained a broken arm, Mother failed to
present the Child at Vanderbilt at the time of her scheduled appointment. Mother’s part in
delaying Aubree’s medical treatment, her failure to disclose all of the Child’s symptoms to
providers, and her general nonchalant attitude concerning the extent and severity of
Aubree’s injuries and the cause of those injuries, provides clear and convincing proof that
Aubree was dependent and neglected by Mother under the definition set out at Tennessee
Code Annotated section 37-1-102(b)(13)(D).
B. Severe Child Abuse
In its September 21, 2021 order, the trial court further held that, “under subsection
37-1-102(b)(13)(G), [] Aubree . . . has suffered from abuse and neglect under the statutory
meaning of those terms. . . .” Having determined that Aubree suffered from abuse and
neglect, the trial court went on to find that Aubree was the victim of severe child abuse.
Tenn. Code Ann. § 37-1-129(b)(2) (“If the petition allege[s] the child was dependent and
neglected as defined in § 37-1-102(b)(13)(G) . . . the court shall determine whether the
parents or either of them . . . committed severe child abuse.” Here, the trial court found
that Mother committed severe child abuse under the definition set out at Tennessee Code
Annotated section 37-1-102(b)(27). In relevant part, the statute provides:
(27) “Severe child abuse” means:
(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;
(ii) “Serious bodily injury” shall have the same meaning given in § 39-15-
402(c);
Tenn. Code Ann. § 37-1-102(b)(27)(A)(i)-(ii). Tennessee Code Annotated section 39-15-
402(c) defines “serious bodily injury,” in relevant part, as follows:
(c) “Serious bodily injury to the child” includes, but is not limited to. . . a
fracture of any bone . . . injuries to the skin that involve severe bruising or
the likelihood of permanent or protracted disfigurement. . . .
Under the foregoing definitions, Mother may be found to have committed severe child
- 21 -
abuse on one of two alternate theories. First, DCS may prove, by clear and convincing
proof, that Mother “knowing[ly] use[d] [] force on [the] [C]hild that is likely to cause
serious bodily injury or death.” Tenn. Code Ann. § 37-1-102(b)(27)(A)(i). Alternatively,
DCS may show, by clear and convincing proof, that Mother “knowing[ly] expos[ed] [the]
child to or [] knowing[ly] fail[ed] to protect [the] [C]hild from abuse or neglect that is likely
to cause serious bodily injury or death.” Id. Here, Mother maintains that she did not
perpetrate the abuse on Aubree; rather, she adamantly maintains that Father, alone, caused
the Child’s injuries. As such, the issue here is whether Mother knowingly exposed Aubree
to or failed to protect her from such severe abuse. The trial court held that
whether one of these parents, or both of these parents, actually exerted the
force necessary to inflict the injury, the Court finds that, at a minimum, both
parents knowingly failed to protect their child from abuse or neglect that was
likely to cause serious bodily harm. Therefore, Aubree [] has been subjected
to “severe child abuse” by both [Mother] and [Father].
Regarding the “knowing” requirement in the severe child abuse statute, Tenn. Code
Ann. § 37-1-102(b)(27)(A)(i), this Court has explained that
[t]he term “knowing” . . . is not defined by statute. . . . In the context of the
dependency and neglect statutes, the term has been described as follows:
We consider a person’s conduct to be “knowing,” and a person
to act or fail to act “knowingly,” when he or she has actual
knowledge of the relevant facts and circumstances or when he
or she is either in deliberate ignorance of or in reckless
disregard of the information that has been presented to him or
her.
In re Caleb J.B.W., No. E2009-01996-COA-R3-PT, 2010 WL 2787848, at *5 (Tenn. Ct.
App. July 14, 2010) (citing In re R.C.P., No. M2003-01143-COA-R3-PT, 2004 WL
1567122, at *7 (Tenn. Ct. App. July 13, 2004)). In other words, the “knowing” requirement
is not limited to parents who are present when severe abuse actually occurs. A parent’s
failure to protect a child will also be considered “knowing” if the parent had been presented
with sufficient facts from which he or she could have and should have recognized that
severe child abuse had occurred or that it was highly probable that severe child abuse would
occur. See In re H.L.F., 297 S.W.3d 223, 236 (Tenn. Ct. App. 2009) (citation omitted).
Furthermore,
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
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limited to conduct intended to cause injury.
Id. (emphasis in original).
In reaching its conclusion that Mother committed severe child abuse by knowingly
failing to protect Aubree, the trial court relied on two cases from this Court, In re N.T.B.,
205 S.W.3d 499 (Tenn. Ct. App. 2006), and In re E.Z., No. E2018-00930-COA-R3-JV,
2019 WL 1380110 (Tenn. Ct. App. Mar. 26, 2019). In In re N.T.B., we affirmed the trial
court’s finding that the child was severely abused and dependent and neglected where “in
all likelihood, one parent abused the child and the other parent is protecting that parent.”
205 S.W.3d at 508. Although, in In re N.T.B., as in the instant case, the parents maintained
that they had no knowledge of what happened to the child, medical proof showed that the
four-month-old child suffered a skull fracture, brain injury, and multiple broken bones. Id.
at 507. The child’s injuries, like Aubree’s, were multiple, very serious, inflicted on
separate occasions with great force, and were not self-inflicted or accidentally-inflicted.
Id. Based on these facts, the trial court rejected the parents’ contention that they had no
knowledge of the mechanism of the injuries and found that “there were sufficient facts
from which, at a minimum, each could have, and should have, recognized that severe child
abuse had occurred . . . .” Id. Specifically, the trial court held “that the severe child abuse
was known in that the injuries sustained by this child were either caused by one or both
[parents] or occurred by their reckless, knowing disregard, and that in all likelihood, one
parent abused the child and the other parent is protecting that parent.” Id. at 508. The
same is true here. Even if Mother did not cause the injuries to Aubree, there can be no
doubt that she disregarded signs of injury and was reckless in postponing immediate
treatment and withholding pertinent information from Aubree’s medical providers.
The case of In re E.Z. involved serious injuries to a three-month-old child, which
injuries were perpetrated over time. We held that the child was the victim of severe child
abuse where both parents denied knowledge of the mechanism of the child’s injuries. In
that case, we noted that
Mother’s and Father’s denials, by themselves, are not dispositive of anything.
B.G.’s injuries fit within the definition of serious bodily harm necessary to
sustain a finding of severe child abuse. The Trial Court found that “one or
both parents are responsible for the injuries sustained by [B.G.]” and that
“both parents know which of them harmed this child.”
In re E.Z., 2019 WL 1380110, at *18. We explained that it was not necessary to “identify
which parent physically applied the violent force necessary to inflict the injuries.” Id.Rather, we held that a finding of severe child abuse could be drawn from the trial court’s
credibility determinations, medical records, and other evidence because, “at a minimum,”
each parent “could have and should have recognized that severe child abuse had occurred
. . . .” Id. (citing In re N.T.B., 205 S.W.3d at 506-507). Indeed, this Court has explained
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that
[e]ach 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., et al., 387 S.W.3d 576, 592 (Tenn. Ct. App. Aug. 9, 2012), perm. app. denied
(Tenn. Oct. 17, 2012).
To dispute the trial court’s finding of severe child abuse, Mother relies on the case
of Tennessee Department of Children’s Services v. H.A.C., No. M2008-01741-COA-R3-
JV, 2009 WL 837709, at *2-4 (Tenn. Ct. App. Mar. 26, 2009), wherein we reversed the
trial court’s determination that a mother’s failure to seek medical attention constituted
severe child abuse under Tennessee Code Annotated section 37-1-102(b)(27)(A)(i). In In
re H.A.C., the child suffered non-accidental trauma, resulting in a broken femur and two
broken ribs. Id. at *1. The rib fractures were at least nine days old by the time the mother
took the child to the hospital. Id. The father admitted to “picking up the child and squeezing
him around the chest and back while frustrated.” Id. While this court found the mother’s
failure to immediately seek medical attention was “evidence suggesting that Mother may
have failed to protect the child from Father’s abuse,” we recognized that “reasonable minds
may differ concerning whether Mother should have taken affirmative action” at the time.
Id. at *4. We reasoned that the record did not establish that the child’s ribs were fractured
on that occasion or that the child’s cries established the mother knew about the injury. Id.Thus, we held that the evidence did “not clearly and convincingly establish that Mother
knowingly failed to protect the child by not immediately seeking medical care for the child
or by not reporting this event to medical providers or the authorities.” Id. The In re H.A.C.
case is distinguishable from the instant appeal.
Here, Mother—a certified nursing assistant—was Aubree’s primary caregiver for
the first month of her life. Mother testified that she knew Aubree was fussy and “screaming
at night” to the point that Mother was “overwhelmed.” Also, at the latest, Mother was
aware of bruising on Aubree when she was one-month old; however, based on Dr. Nelson’s
testimony and the trial court’s credibility findings, Mother failed to disclose this
information to Aubree’s pediatrician. Furthermore, Mother failed to follow Nurse Reeder’s
recommendation to request further testing from Dr. Nelson. In fact, Mother did not take
Aubree to see Dr. Nelson for more than a week following Nurse Reeder’s recommendation.
Even after Aubree was diagnosed with a broken arm, Mother waited four days to take her
for evaluation at Vanderbilt. In In re H.A.C. there was no indication that the child’s ribs
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were fractured so as to trigger Mother to seek immediate medical attention or to report any
issues to the child’s medical providers. Id. Here, however, Mother did seek medical
attention for Aubree based on bruising and incessant crying. She was instructed by medical
professionals to seek further testing and treatment, but she delayed this treatment and also
failed to fully apprise Aubree’s treating physicians of the concerns and recommendations
of other doctors, who had seen Aubree. As such, this case is more in line with the holdings
in In re N.T.B. and In re E.Z., discussed supra. The combined weight of all of the facts
presented in this case clearly and convincingly support the trial court’s holding that Mother,
at the very least, “knowing[ly] fail[ed] to protect [Aubree] from abuse or neglect that [was]
likely to cause serious bodily injury.” Tenn. Code Ann. § 37-1-102(b)(27)(A)(i).
C. Best Interest
When a court determines that a child is dependent and neglected, it proceeds to
render a “disposition best suited to the protection and physical, mental and moral welfare
of the child.” Tenn. Code. Ann. § 37-1-130(a). “The court may permit the child to stay with
her parents, guardian, other custodian, or transfer temporary legal custody to an individual
‘qualified to receive and care for the child’ or to DCS.” In re E.Z., 2019 WL 1380110, *19
(citing Tenn. Code Ann. §§ 37-1-130(a)(1), (2)). However, “[n]o child who has been found
to be a victim of severe child abuse shall be returned to the custody or residence of any
person who engaged in or knowingly failed to protect the child from the brutality or abuse
unless the court finds on the basis of clear and convincing evidence that the child will be
provided a safe home free from further such brutality and abuse.” Tenn. Code. Ann. § 37-
1-130(c).
Here, the trial court held that, in view of its
finding that both parents perpetrated severe child abuse by knowingly failing
to protect Aubree from abuse or neglect likely to cause serious bodily harm,
the Court cannot return Aubree [] to the care of her parents unless there is
clear and convincing evidence that she would be safe in the care of the
parents. No clear and convincing evidence exists in this case to convince this
Court that Aubree would be safe from further abuse in her parents’ care.
Mother challenges this finding. She argues that because she has missed only one visit with
Aubree since the proceedings began, pays child support, has a home of her own, is
employed, has learned the warning signs of abuse, has the support of Grandmother, and
loves Aubree very much, it is in Aubree’s best interest to be placed in Mother’s custody.
In view of the evidence, Mother’s arguments are not persuasive.
Specifically concerning why it would not be safe for the Child to be returned to
Mother’s custody, the trial court noted that Mother “has completed many of the steps set
forth for her on the permanency plan.” Indeed, as Mother argues, the record shows that
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she has stable housing and employment, and she is attending school. However, the trial
court was concerned about Mother’s sessions with Ms. Cross, who testified that, although
Mother has been successful in completing some tasks, Mother has “not express[ed] to Ms.
Cross any understanding that she had been found to be a perpetrator of severe child abuse
by non-protection.” The record indicates that, throughout these proceedings, Mother has
maintained that she “has not been found guilty of anything,” and that Aubree’s injuries
“had all been done [by Father].” The trial court also noted that
Ms. Cross further testified that an important part of working with parents
who have been non-protective is to help them understand the problem and to
be better protective going forward. Jerri Cross testified that [Mother] has
difficulty with consistency and processing information, which [Mother]
attributes to a learning disability. Ms. Cross testified in her deposition that
[Mother] has not provided accurate and complete information to her about
subsequent relationships with men, which of course, would be important
information to assessing her level of protectiveness and assessing [Mother’s]
home situation for disposition purposes. Ms. Cross noted that one significant
relationship that [Mother] had was with a person who had a sex abuser in his
immediate family. [Mother] did not initially know how to check the sex
abuser registry, but Ms. Cross instructed her how to do that.
As set out above, the trial court made a specific finding that Mother was not a credible
witness. Again, “[t]o the extent the trial court’s determinations rest upon an assessment of
the credibility of witnesses, the determinations will not be overturned absent clear and
convincing evidence to the contrary.” In re Zaliyah S., 2020 WL 3494471, at *3 (citation
omitted). Having reviewed Mother’s testimony, we agree with the trial court’s assessment
that
there were many aspects of her testimony at trial that the Court found
unbelievable and unpersuasive. First, and most importantly, [Mother’s]
testimony was generally evasive and equivocal. She contradicted her own
testimony at this trial and at previous hearings. In every respect, and at every
opportunity, [Mother] externalized any responsibility for what happened to
her child.
Throughout these proceedings, Mother has never taken responsibility for Aubree’s injuries.
Even assuming that Mother did not perpetuate the injuries, as she has adamantly
maintained, she has not demonstrated any true understanding of just how egregious
Aubree’s injuries were. In fact, between the time Mother and Father took Aubree to
Livingston Hospital on May 18 and May 23, 2019, when Aubree was removed from their
custody, Mother never asked Father what happened to Aubree’s arm and continued to live
with him and share parenting responsibilities with him. Mother testified:
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Q. Did you [Mother] ask [Father] what happened . . . to have [Aubree’s]
bone be broken. . . .
A. I didn’t . . . ask him what happened.
Q. Okay. Don’t you think, once again, if you’re going to be with somebody
and stay with them in a relationship for six days after finding out that your
child’s arm just broke that you would want to know what happened to cause
the break?
A. Yes, I want to know.
Q. It’s true you never got an answer?
A. I never did.
Q. Why did you feel comfortable and satisfied with never receiving an
answer over those six days?
A. We’ll at that time, I didn’t know that he had done that. I didn’t know it
was him that had done it.
Q. What did you think happened to cause her arm to break? She is a ten-
week-o1d baby. [] [W]hat investigation did you do as a mother to a ten-week-
old baby to say, what happened to my child?
A. I didn’t ask him what happened.
The foregoing testimony demonstrates the gravamen of the concern with Aubree being in
Mother’s care. While Mother may be able to provide Aubree’s necessities, a parent must
also be vigilant in protecting and prioritizing his or her child. The majority of parents do
this innately; however, this instinct appears to be lacking in Mother. As FSW Leftwich
testified, when Mother first saw Aubree with the bandages on her limbs, Mother showed
no emotion and, in fact, held Aubree in a way that would cause Aubree pain. There is a
photo of the Child in the record showing all of her limbs wrapped in bandages. It is a heart-
wrenching photo, and it is inconceivable to this Court that any person, much less a parent,
would not have a visceral reaction to seeing a child in this state. Yet, as FSW Leftwich
explained, Mother had “no reaction at all, none, no, none.”
From the record, Mother is also untruthful and evasive. This may account for why
she has not taken any responsibility for Aubree’s injuries and has failed to demonstrate
even the most basic parental concern. As the trial court correctly noted, “[t]he continuing
and seemingly pervasive problem of [Mother’s] inconsistency and lack of candor makes it
impossible for this Court to determine that it would be safe for Aubree [] to be returned to
[Mother’s] custody.” We agree. Mother’s lack of candor also resulted in her undisputed
failure to complete the required psychological assessment. As the trial court found:
[Mother] was given a psychological assessment on four separate occasions,
and none of the tests were reliable or valid due to her “manipulation” and
“faking good” responses. [Mother] sought out another provider to administer
a fifth assessment, but it was not the type of psychological assessment needed
to comply with her permanency plan.
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The Court is troubled that [Mother] failed four psychological
assessments. Subsequent assessments with Ph.D-level provider, Ms. Cathy
Grello, were persuasive, but they were unhelpful in demonstrating that it
would be safe to return Aubree to [Mother’s] care. Neither the deception
scale test, nor the child abuse index performed as part of Ms. Grello’s
assessment was favorable to [Mother]. Further, [Mother] has failed to
comply with Ms. Grello’s recommendation that she submit to a psychiatric
evaluation.
Mother’s testimony supports the trial court’s findings:
Q. Okay. What would you consider the most important treatment goal for
you in the sense of reunifying with your child?
A. Keeping my depression under control, my stress level down, becoming a
better, a better mother for Aubree. Which I have, I’ve been able to learn
things and grow from this through counseling.
Q. Can you tell me then why is it that you have not passed a child abuse
inventory exam over the last two months—excuse me, two years?
A. I thought I did have one that I passed.
Q. Which one did you think you passed?
A. I went to Knoxville and took one down there, a psychological—
Q. Dr. Grello?
A. I think that’s her name.
Q. Okay. Well, you didn’t. You didn’t pass it.
A. Okay.
Q. And you haven’t passed a child abuse inventory test despite five
psychological [exams] to this day, would you agree with that?
A. If that’s what they have, yes.
Q. Would you agree that that is a serious concern that a test would indicate
that you have the profile of high risk physical abuse for a child to be in your
care?
A. No.
Q. Why is that not a concern?
A. Because a test can’t read me like normal people can.
Q. Well, wouldn’t it be reasonable then for the, someone who’s evaluating
the situation to need to see something like that to see if you can pass a test
that evaluates your child abuse potential?
A. If that’s what they want then, yes, but a test does not define what type of
mother I am to my child.
Mother’s perpetual denial of any wrongdoing, her lack of candor with psychologists,
and her belief that the evaluations are not worth her time evince a cavalier attitude
concerning the systemic abuse that was perpetrated on her child. The facts presented here
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are similar to those presented in In re Nehemia H., Nos. 2017-CV-79, 2017-CV-80, 2020
WL 3885956 (Tenn. Ct. App. July 8, 2020). In Nehemia H., we noted that, “[a]lthough
the parents had improved their living conditions somewhat, neither parent apparently
recognized the role he or she had played in the Children’s trauma. Instead, as the trial court
found, the parents attempted to deflect blame and mislead their counselors concerning the
magnitude of the abuse.” Id. at *9. In affirming the trial court’s finding of dependency
and neglect, severe child abuse, and its finding that it was in the children’s best interest to
remain in DCS custody, we further noted that
[a]lthough the court commended Mother concerning improvements to her
lifestyle and mental state, the court found her lack of disclosure with
therapists and the evaluator regarding her participation in the abuse to be
troubling. The court also noted that Mother continued to blame Father for her
estrangement from the Children and had not acknowledged her own
responsibility for the current situation. Following our thorough review of the
evidence, we determine that the proof supports the trial court’s findings and
conclusions in this regard.
Id. at *10. The same is true here. From the totality of the circumstances, we conclude that
there is clear and convincing evidence that the Child will not “be provided a safe home free
from further [] brutality and abuse” if returned to Mother’s care. Tenn. Code. Ann. § 37-1-
130(c). Because the threat to the Child’s safety still exists, we affirm the trial court’s
decision to leave Aubree in DCS’ custody.
V. Conclusion
For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed to the Appellant, Taylor R. Because Taylor R. is
proceeding in forma pauperis in this appeal, execution for costs may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
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