.0IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
March 21, 2012 Session
IN RE: DAKOTA C. R. (d/o/b 6/11/2004)
JIMMY D. R. JR. (d/o/b 3/5/2006)
NATHANIEL E. R. (d/o/b 2/23/2007)
Direct Appeal from the Circuit Court for McNairy County
No. 6266 J. Weber McCraw, Judge
No. W2010-01946-COA-R3-JV - Filed April 24, 2012
This appeal arises out of dependency and neglect proceedings regarding three minor children.
The circuit court found all three children dependent and neglected, and it found the youngest
child had been severely abused. We affirm the dependency and neglect finding and the
severe abuse finding with regard to Mother. However, we reverse the severe abuse finding
with regard to Father.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part and Reversed in Part
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.
Thomas E. Weakley, Dyersburg, Tennessee, for the appellant, Rosanna R. and Jimmy Dale
R.
Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General,
Shanta J. Murray, Assistant Attorney General, Nashville, Tennessee, for the appellee,
Tennessee Department of Children’s Services
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
Rosanna R. (“Mother”) and Jimmy Dale R. (“Father”) have a history with the
Tennessee Department of Children’s Services (“DCS”). While in the custody of Mother and
Father, Father’s two older boys, Cody and Seth, were removed based upon allegations of
abuse and neglect.
This appeal involves allegations of abuse and neglect toward three children of Mother
and Father: Dakota, Jimmy Jr., and Nathaniel.1 DCS’ current involvement stems from an
October 30, 2007 incident. Mother claims that at approximately 11:00 P.M., while Father
was at work, she took a shower, with the radio on “half-way[,]” while the children were
sleeping–Nathaniel in a crib, Jimmy, Jr. on a sofa, and Dakota and Cody2 in a “back
bedroom.” After fifteen to twenty minutes, she exited the shower and heard eight-month-old
Nathaniel “crying[] and screaming[.]” She claims that she saw eighteen-month-old Jimmy,
Jr. in Nathaniel’s crib “hitting [Nathaniel] in the head with the cordless phone.” She
retrieved Nathaniel and held him “trying to calm him down[,]” but he continued to scream.
She also attempted to put both ice and a warm “washrag” on Nathaniel’s head, but, according
to Mother, “[h]e wouldn’t be still. He kept moving.” Mother telephoned Father at work, and
after Father returned home, Mother took Nathaniel to the McNairy Regional Hospital some
time after midnight, while Father stayed home with the other children.
A CT head scan was performed on Nathaniel, with the following findings:
There is soft tissue swelling overlying the right frontal bone, and there is a
nondisplaced fracture of the right frontal bone. No evidence of significant
depression. There is no acute intracranial hemorrhage, mass effect, or midline
shift. The basilar cisterns are patent. The gray-white matter differentiation
appears preserved.
Both DCS and the McNairy County Sheriff’s Department were soon alerted to the potential
child abuse, and an investigation was launched. Nathaniel was released from the hospital on
November 2, 2007, and all three children were placed in a foster home. Ultimately, a Petition
to Adjudicate Dependency and Neglect was filed against Mother and Father in the McNairy
County Juvenile Court, regarding Dakota, Jimmy, Jr., and Nathaniel, on November 6, 2007,
1
A fourth child, who is not a subject of these proceedings, was born to Mother and Father in 2011.
2
Mother denies knowing that Cody, according to an apparent court order, was not to be in her home
without supervision.
-2-
and a guardian ad litem was appointed to represent their interests. On December 9, 2008, the
juvenile court adjudicated the three children dependent and neglected, and it found that both
Mother and Father had severely abused Nathaniel. Mother and Father appealed these
findings to the McNairy County Circuit Court, and a trial was held on June 7 and June 21,
2010.
At trial, McNairy County Sheriff’s Department Officer Allen Strickland, who took
over the case the morning after the incident, testified regarding his observation and
photographing3 of “severe bruising and some scratches on the face, the forehead, and nose”
of Nathaniel. Officer Strickland recovered the telephone allegedly used in the assault, and
he observed no sharp edges on the phone or anything that could have caused scratches to
Nathaniel. In fact, he “took the phone and rubbed it across [his] arm and showed all the
edges and [he] could not produce any scratches whatsoever on [his] skin.” He also visited
Father’s and Mother’s home shortly after the incident, and saw nothing in Nathaniel’s crib
that could have caused Nathaniel’s injuries. According to Officer Strickland, the parents’
home is a “little single wide trailer” and the bathroom is “probably [] thirty feet” from
Nathaniel’s crib. Based upon this distance, he opined that someone in the shower–even with
the water running–would hear a child screaming.
DCS Investigator Maria Mullins also visited the hospital where she observed
Nathaniel’s injuries, which she described at trial as “The whole front part of his head was
black and blue and purplish, and [he] had scratches all over his head and a little blood under
his nose[.]” She interviewed Mother and Father at the hospital and she explained to them
that Nathaniel would not be allowed to leave the hospital with them. According to Ms.
Mullins, Mother and Father were “very upset” and “[t]hey stated that their kids were rough.
They just played hard and besides that, they said, ‘Baby [Nathaniel] is okay.’” A child and
family team meeting was conducted on November 1, 2007. Father participated in the
meeting, but Mother “stormed out of there screaming and cursing and stating that DCS was
not taking her children[.]”
On November 16, 2007, Ms. Mullins visited the children’s foster home. She
interacted with then-twenty-month-old Jimmy, Jr., the alleged perpetrator of Nathaniel’s
injuries, as follows:
I held out my arms to him and then he grabbed a hold of my hands, and I just
held him to see if he was going to stand up, and after difficulty he did stand
up[.] . . . [I]t took him several attempts to stand up before he did [.]
3
These photographs depicting extensive scratching and bruising to Nathaniel’s face are included in
the record before us.
-3-
At the foster home, Dakota “pulled her shorts up and showed [Ms. Mullins] a scar on her leg
where she had gotten a whipping [from her daddy with a belt]. It was about two and a half
inches long and also, on her back, she had some marks across her back where she said her
mommy had switched her.” When Ms. Mullins asked Mother and Father about these marks,
“They just stated their children play rough.” Ms. Mullins photographed these injuries.
At a second child and family team meeting, Ms. Mullins was concerned because
“neither [Mother] nor [Father] said one good thing about Jimmy, Jr., the eighteen month old,
and they actually called him a demon child.” According to Ms. Mullins, Mother and Father
were uncooperative regarding DCS’ recommendations, and they refused to sign “medical
papers” or to bring the children’s medications, causing Cody to go without his medication
for several days. Ms. Mullins stated that Mother and Father began “parenting, anger
management, counseling . . . case management” but they did not follow through to
completion. Ms. Mullins stated that she did not “work the [DCS] case” regarding Cody and
Seth, and therefore, she claimed to have no personal animosity nor any preconceived notions
or bias against Mother or Father based upon their prior history with DCS, and she denied a
DCS “witch hunt” against them. Based upon “the fact that neither parent was accepting any
responsibility, but blaming little Jimmy and were very uncooperative, refusing to sign any
medical release, refusing to bring Cody’s medication[,]” Ms. Mullins believed placing the
children in foster care was in their best interest.
Forensic interviewer Kim Gibson testified concerning her interview with three-year-
old Dakota in January 2008. She testified that Dakota “made a statement that her mom had
hit her and her brother and had beat her brother.” Dakota also allegedly “disclosed that her
father had also hit her with a belt and caused a scar on her leg[,]” and “she identified the
peepee as being spanked by her mom and the dad.” Ms. Gibson expressed concern when
Dakota made statements that “she didn’t love or like her mother and that she didn’t want to
live with her[,]” as, according to Ms. Gibson, such feelings are a-typical in young children.
The evidentiary deposition of Karen L. Lakin, M.D. was submitted at trial. Following
a recitation of Dr. Lakin’s extensive qualifications, she was tendered as an expert without
objection. Dr. Lakin interviewed Dakota, Jimmy, Jr., and Nathaniel on December 10, 2007,
for twenty minutes each, and she spent “an extensive amount of time” reviewing the
medical/other records in this case.
Dr. Lakin explained that Nathaniel’s CT scan indicated no intracranial injury–i.e. no
intracranial bleeding. When questioned regarding her conclusion with respect to the history
given as compared to the injury presented, Dr. Lakin testified as follows:
I was concerned that this was nonaccidental trauma because in my opinion the
-4-
one-year-old would not have been able to sustain enough force to fracture the
skull of the eight-month-old.
[T]he skull . . . even in an eight-month-old . . . it takes some amount of
force to fracture your skull. There was also a significant amount of soft tissue
swelling and bruising and linear marks or abrasions on the surface of the
forehead that looked like repeated blows to that area.
That would take a significant - - in my opinion it would take some
coordination. And when you’re talking about an eight-month-old and an
eighteen month old, I think it would be a stretch to say that an 18-month-old
would even have the ability to sustain that type of force to cause a skull
fracture and then to be able to repeatedly beat the head of an 8-month-old and
to hit the target - - I mean, to be very specific. So . . . it was a suspicious story.
....
So it appeared from the physical finding that there may have been
repeated blows and sustained blows. And if the story was that the one-year-old
did that . . . there was no intervention. And I’m sure that the 8-month-old
would have been crying or screaming during this whole episode.
So that was a concern. And then I was also concerned about how the
one-year-old could get to the 8-month-old in order to injure him to begin with.
If the 8-month-old was in the crib and the one-year-old was outside of the crib.
....
In my examination of the one-year-old at LeBonheur in December, he
also did not perform well on his developmental screen and failed the
communication and gro[ss] motor and fine motor and problem solving.
And so this patient was also known to have or there had been some
concern about developmental delay as well. So even developmentally and I’m
not aware of exactly when he started walking or climbing. But that was a
concern that he would have been able to coordinate carrying a telephone I
mean, up into a crib reaching his target and then actually making his target all
in the period of time without anyone knowing what happened or stopping it.
-5-
She, again, opined that the history given–Jimmy, Jr. striking Nathaniel with a
telephone–was not consistent with the degree of Nathaniel’s injuries. She stated that Jimmy,
Jr. “being one year of age to be able to sustain that amount of force and aim and under those
circumstances I think would be unlikely.” The story, in her opinion, was “suspicious for
nonaccidental trauma.” In sum, Dr. Lakin characterized both Nathaniel’s skull fracture and
his soft tissue injury as “significant injur[ies]” with which “significant pain would be
associated[,]” and she acknowledged that the force necessary to cause a skull fracture has the
potential to cause great bodily harm.
In her deposition, Dr. Lakin also testified regarding her physical examination of
Jimmy, Jr., which revealed “multiple linear hypopigmented marks that were approximately
three to four centimeters in length along his right upper shoulder and across the back. . . [a]nd
a looped mark that was on his left flank.” Dr. Lakin explained that “[t]hese are the type of
scars that we might see from an extension cord or some type of strap.” Dr. Lakin also
obtained a skeletal survey of Jimmy, Jr. which revealed healing fractures of different ages
in both of his arms and in his left leg, which were “concerning for nonaccidental trauma
based upon the lack of history and the lack of treatment.” Dr. Lakin testified that Jimmy, Jr.’s
arms were fractured “probably on the later end of [] seven to fourteen days [prior to her
examination in December 2007]” or that they could have been injured “on the later end of
the fourteen days and maybe even past the fourteen days [prior to her examination]” and that
his leg was likely fractured seven to fourteen days prior to her examination. However, Dr.
Lakin was unable to precisely identify when the injuries occurred and she acknowledged that
the injuries could have been inflicted prior to October 31, 2007–that is, prior to Jimmy, Jr.’s
removal from Mother’s and Father’s home. Dr. Lakin testified that Jimmy, Jr.’s already
limited capabilities, as an eighteen-month-old, would have been further limited by the pain
associated with his own injuries.
Regarding her physical examination of Dakota, Dr. Lakin testified that Dakota had
a rash on her buttocks and that she was “concerned because [Dakota] had extreme anxiety
related to loud noises.” Dakota was assessed “with diaper dermatitis and anxiety.”
Mother, who is the children’s primary caregiver, testified at trial regarding the events
of October 30, 2007:
I waited ‘til my kids were asleep. Went to go take a shower. While I was in
the shower, my eighteen month old had climbed into the crib and hit my son
with a cordless phone. When I got out, I heard him crying. Went in there and
checked on him. My eighteen month old was in there in the crib hitting him.
I got him out. Put him on the couch. Checked on my son. S[aw] that he was
hurt. I called my husband’s phone. He was at work in Adamsville. Couldn’t
-6-
get in touch with him. Called his work. His . . . boss lady . . . went back there
and got him. On his way home, he got stopped for speeding . . . . So, it took
longer. When my husband got home, I took my son straight to the hospital
When questioned regarding Jimmy, Jr.’s ability to climb into Nathaniel’s crib carrying a
telephone, Mother suggested that Jimmy, Jr. slid the telephone through the crib slats and then
climbed into the crib. She stated, “I know [Jimmy, Jr.] climbs, and we’ve done had to get
him out plenty of times out of the baby bed with his brother.” She claimed that prior to
October 30, 2007, she had never seen Jimmy, Jr. strike Nathaniel. Instead, those numerous
times in which Jimmy, Jr. had allegedly climbed into Nathaniel’s crib, Jimmy, Jr. had simply
exchanged his own sippy cup for Nathaniel’s bottle. Mother submitted several photographs
depicting Jimmy Jr. climbing on various objects, including a toilet, a gate, and a cabinet, as
well as photographs of Jimmy, Jr. carrying Nathaniel’s bottle, a television remote control,
and potatoes in both hands. Mother claimed that most of these photographs were taken prior
to the incident, but she admitted that the date appearing on the photographs could have been
altered. Mother acknowledged her own difficulty holding Nathaniel down to place ice or a
damp cloth on him, but she surmised that Jimmy, Jr. was able to hold his brother down and
strike him “[b]ecause [Nathaniel] was asleep at the time.”
Mother also presented photographs of Dakota and Jimmy, Jr. Specifically, she
submitted a photograph of Jimmy, Jr. taken in November 2007, which she claimed
demonstrated the lack of linear scars or bruises on his back. She also submitted photographs,
which she claimed were taken after the children’s removal to foster care, which allegedly
depicted bruises on Jimmy, Jr.’s head and arms, and on Dakota’s back, arms and legs. These
pictures, according to Mother, demonstrated that the children were injured by their foster
family.
At trial, Mother denied calling Jimmy, Jr. a “demon child.” She also denied ever
whipping Dakota, Jimmy, Jr., or Nathaniel, but she did admit having whipped Cody and Seth
with a belt, a switch, and a paint-stirrer-like paddle. She suggested that if Dakota had
confided to a counselor that Mother had spanked her, it was “‘cause y’all put it in her head.”
Furthermore, she testified that any allegations of abuse by the children would be the result
of “brainwash[ing]” by DCS who is “out to get [her,]” and that everyone is lying against her
to “keep DHS from getting in trouble” and because “they’re being paid.” 4
Father corroborated much of Mother’s testimony about the incident. He stated that
on the night Nathaniel was injured, Mother had called him at work at approximately 11:15
4
Similarly, Mother testified that Father’s ex-wife, who is Mother’s “foster sister,” had convinced
DCS to take Cody and Seth “‘cause she was jealous ‘cause I was with [Father].”
-7-
P.M. telling him he needed to return home. Father testified that Jimmy, Jr. was weaned from
his bottle prior to Nathaniel’s birth, but that when Nathaniel was born, Jimmy, Jr. wanted
Nathaniel’s bottle “all the time” and that he would take it from him “[a]ll the time[.]” Father
claimed that prior to October 30, 2007, he had seen Jimmy, Jr. climb up in Nathaniel’s baby
bed “[q]uite often[,]” as Nathaniel was put to bed with a bottle, and that “He’d put his sippy
cup in there and get his bottle.” In fact, Father stated that he had been forced to take
Nathaniel’s bottle from Jimmy, Jr. “[s]everal times a day.” Father could not explain why, on
October 30, Jimmy, Jr. beat Nathaniel with a telephone in order to get his bottle rather than
simply swapping his sippy cup for it, which allegedly was his custom.
Father described Jimmy, Jr. as a “climber[,]” stating, “He’d climb up on the table.
He’d climb up steps. Up railings.” He also asserted that Jimmy, Jr. is “strong for his age”
and he expressed his belief that Jimmy, Jr. possessed the necessary strength to “crack
Nathaniel’s skull.” Unlike Mother, Father testified that prior to the October 30 incident, he
had frequently seen Jimmy, Jr. strike Nathaniel with objects, as “[h]e was jealous of his
brother.” When Jimmy, Jr. did so, Father would “just tell him to quit.” Father denied
referring to Jimmy, Jr. as a “little demon[.]”
At trial, Father attempted to explain the injuries, or alleged lack thereof, to all of the
children. He stated that he had never whipped Dakota, Jimmy, Jr. or Nathaniel. He
contended that Dakota’s scar was caused by “sheet metal in the back of [his] truck[,]” and
that her statement that he had whipped her was Dakota “just saying what she was told to
say[.]” Father denied the existence of linear whip marks on Jimmy, Jr.’s back and he accused
Jimmy, Jr.’s foster family–with whom Mother “didn’t get along”–of causing the healing
fractures in his arms, alleging that he had “seen [the foster father] throw [Jimmy, Jr.] . . . in
their van when they [were] leaving.” He further stated that Jimmy, Jr. had never complained
of any pain in his wrist or ankle. Father denied that Nathaniel sustained any
fractures–apparently even at the hands of Jimmy, Jr.–while in the care of Mother and Father.
Finally, Father testified that he had no reason to believe that Mother had injured
Nathaniel, claiming that he had never seen her exhibit abusive behavior toward him.
Essentially, he asserted that DCS had taken his children–Cody, Seth, Dakota, Jimmy, Jr. and
Nathaniel–away for no reason.
Father’s mother (“Grandmother”), who lives next door to Mother and Father, also
testified at the circuit court proceedings. She stated that she had seen Jimmy, Jr. climb into
Nathaniel’s crib “several times” and that Jimmy, Jr. is “a stout, strong little boy, and he . . .
just loves mischief.” Grandmother claimed that she had seen Jimmy, Jr. play with a plastic
hammer and nail set, and that he was able “hit what he was aiming at with the hammer[.]”
As evidence of Jimmy, Jr.’s strength, Grandmother cited Jimmy, Jr. having “head butted” her
-8-
and broken her glasses. In sum, Grandmother testified that the children’s removal is “all a
misunderstanding” because she knows that Mother and Father “didn’t mistreat their
children.”
Finally, additional DCS personnel testified. Beverly Frisch, DCS Special
Investigations Unit Team Leader, stated the she had extensively investigated allegations of
physical and psychological abuse against the children’s foster parents and found the
allegations to be “unfounded.” She explained that the bruises found on the children while
in foster care were not located on “suspicious areas” of the body which would indicate
possible abuse. Shannon Turner, DCS Family Service Worker, likewise testified that Mother
and Father had made “a lot of allegations . . .towards the foster home[,]” and that “everything
was investigated and it all came back unfounded.” Misty Byrd, DCS Family Service Worker,
stated that she has not recommended that the children be returned to Mother and Father
because she believes they are unsafe in their home. She explained that Mother “gets very
upset easily. She will scream, yell, you know, throw a fit at you.”
April Smith, DCS Special Investigations Unit Investigator, similarly testified that
following her investigations, she had concluded that the allegations against the children’s
foster parents were “unfounded.” Ms. Smith also described Mother’s supervised visit with
the children in January 2008. She stated that Mother was allowed to take Dakota to the
restroom alone, and a conversation was heard taking place in the restroom. When Mother
and Dakota exited the restroom, Mother told Dakota to “[t]ell [the supervisor] what you just
told me.” Mother then recorded Dakota making sexual abuse allegations against a foster
parent. Ms. Smith stated that Dakota had made no prior sexual abuse allegations and that an
investigation found the allegation to be “unfounded.”
Following the conclusion of the trial, the trial court entered an order on October 29,
2010, finding Dakota, Jimmy, Jr. and Nathaniel dependent and neglected, and finding that
Nathaniel was severely abused by Mother and Father “either directly or by failing to protect
the child.” Mother and Father timely appealed to this Court.
II. I SSUES P RESENTED
Mother and Father present the following issues for review, as summarized:
1. Whether there existed clear and convincing evidence of dependency and neglect; and
2. Whether there existed clear and convincing evidence of severe child abuse.
-9-
For the following reasons, we affirm the trial court’s finding of dependency and neglect and
its finding of severe abuse by Mother. However, we reverse the trial court’s finding of
severe abuse by Father.
III. S TANDARD OF R EVIEW
On appeal, a trial court’s factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d) (2011); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence
to preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999)). When the resolution of the issues in a case depends upon the truthfulness of
witnesses, the fact-finder, who has the opportunity to observe the witnesses in their manner
and demeanor while testifying, is in a far better position than this Court to decide those
issues. Mach. Sales Co., Inc. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643
(Tenn. Ct. App. 2002). “The weight, faith, and credit to be given to any witness's testimony
lies in the first instance with the trier of fact, and the credibility accorded will be given great
weight by the appellate court.” Id. However, “[w]hen the issues involve expert medical
testimony that is contained in the record by deposition, determination of the weight and
credibility of the evidence necessarily must be draw from the contents of the depositions, and
the reviewing court may draw its own conclusions with regard to those issues.” Foreman
v. Automatic Sys., Inc., 272 S.W.3d 560, 571 (Tenn. 2008) (citing Orrick v. Bestway
Trucking, Inc., 184 S.W.3d 211, 216 (Tenn. 2006)). We review a trial court’s conclusions
of law under a de novo standard upon the record with no presumption of correctness. Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v.
White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).
IV. D ISCUSSION
“A biological parent’s right to the care and the custody of his child is among the oldest
of the judicially recognized liberty interests protected by the due process clauses of the
federal and state constitutions.” In re Samaria S., 347 S.W.3d 188, 200 (Tenn. Ct. App.
2011) (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000);
In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993); In re Giorgianna H., 205 S.W.3d 508, 515 (Tenn. Ct. App.
2006)). This right, however, is not absolute. Id. (citing DCS v. C.H.K., 154 S.W.3d 586, 589
-10-
(Tenn. Ct. App. 2004)). “It continues without interruption only so long as the parent has not
relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination.”
Id. at 200-01 (citing Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002); In re M.J.B., 140
S.W.3d 643, 652-53 (Tenn. Ct. App. 2004)).
One situation in which the rights of a biological parent may be limited is where a child
has been deemed dependent and neglected. Id. at 201. A “dependent and neglected child,”
as relevant to this case, is a child:
Who 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; [or]
....
Who is suffering from abuse or neglect[.]
Tenn. Code Ann. § 37-1-102(b)(12)(F), (G). “‘Parents have a duty to provide, and children
have a corresponding right to be provided with a safe environment, free from abuse and
neglect.’” Id. (quoting In re R.C.P., M2003-01143-COA-R3-PT, 2004 WL 1567122, at *6
(Tenn. Ct. App. July 13, 2004)). “The primary purpose of dependency and neglect
proceedings ‘is to provide for the care and protection of children whose parents are unable
or unwilling to care for them.’” Id. (quoting DCS v. M.S., No. M2003-01670-COA-R3-CV,
2005 WL 549141, at *9 n.11 (Tenn. Ct. App. Mar. 8, 2005)).5
When the ground for a dependency and neglect petition is “abuse and neglect[,]”
Tenn. Code Ann. § 37-1-102(b)(12)(G), the court shall determine whether the parents have
committed severe child abuse.6 Tenn. Code Ann. § 37-1-129(a)(2). As relevant to this case,
“severe child abuse” means:
(A)(I) The knowing exposure of a child to or the knowing failure to protect a
5
“‘Children who are found to be dependent and neglected are frequently removed from their
parents’[] custody and placed in the custody of [DCS]. If the parents’ conduct that precipitated the
dependent and neglect proceeding is sufficiently serious, a finding of dependency and neglect may be the
foundation for a proceeding to terminate the parents’ parental rights.’” In re Samaria S., 347 S.W.3d at 201
(quoting In re Gaven R., No. M2005-01868-COA-R3-CV, 2007 WL 2198288, at *7 (Tenn. Ct. App. July 23,
2007)). In this case, a “Petition for Termination of Parental Rights” was filed in the McNairy County
Juvenile Court against Mother and Father regarding Dakota, Jimmy, Jr. and Nathaniel, on September 10,
2009. (V11, 90). However, according to DCS, “[t]he Juvenile Court granted the Department’s petition, but
upon information and belief, a written order is presently pending execution.”
6
The court may make a severe child abuse determination regardless of the grounds alleged in the
dependency and neglect proceeding. Tenn. Code Ann. § 37-1-129(a)(2).
-11-
child from abuse or neglect that is likely to cause serious bodily injury7 or
death and the knowing use of force on a child that is likely to cause serious
bodily injury or death;
....
(B) Specific brutality, abuse or neglect towards a child that in the opinion of
qualified experts has caused or will reasonably be 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;
(C) The commission of any act towards the child prohibited by § . . . 39-15-
402 [aggravated child abuse and neglect] . . . or the knowing failure to protect
the child from the commission of any such act towards the child[.]
Tenn. Code Ann. § 37-1-102(b)(23). Both dependency and neglect and severe abuse must
be found by clear and convincing evidence. See Tenn. Code Ann. 37-1-129(c); Dep’t of
Children’s Servs. v. David H., 247 S.W.3d 651, 655 (Tenn. Ct. App. 2006) (citing Dep’t of
Children’s Servs. v. M.S. & J.S., No. M2003-01780-COA-R3-CV, 2005 WL 549141 (Tenn.
Ct. App. Mar. 8, 2005) perm. app. denied (Tenn. Aug. 29, 2005)).
As stated above, the circuit court found that all three children were dependent and
neglected and that Nathaniel was the victim of severe child abuse “at the hands of [Mother]
and [Father], either directly or by failing to protect the child.”
1. Severe Abuse
a. Mother
On appeal, Mother and Father primarily argue that the trial court gave too much
weight to the expert deposition testimony of Dr. Lakin and that it ignored Mother’s
“reasonable explanation” for Nathaniel’s injuries, despite the lack of “direct proof to the
contrary.” In their brief to this Court, Mother and Father place great emphasis on a “Progress
7
“‘Serious bodily injury to the child’” 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).
-12-
Note” written by an ER physician on November 1, 2007, which states “Family reports sibling
was hitting patient in the head with a telephone. . . . Exam appears to be consistent with story
reported to me.” They also point to a hospital assessment form which confirms that Mother’s
hair was wet when she arrived with Nathaniel at the ER.
Mother and Father argue that Dr. Lakin is “just simply wrong about her conclusions”
and they suggest that the trial court erred in accepting Dr. Lakin’s testimony regarding
Jimmy, Jr.’s inability to inflict Nathaniel’s injuries because she only examined Jimmy, Jr. for
twenty minutes, while Mother, Father and Grandmother all testified concerning Jimmy, Jr.’s
stoutness, climbing abilities, and history of bottle-snatching. Additionally, they cite Dr.
Lakin’s deposition testimony in which she agreed that Nathaniel’s skull fracture “turned out
not to be a serious type of skull fracture[.]” Finally, Mother and Father note that Mother “had
a habit and custom of taking all of the children to the doctor on a very regular basis” and that
this conduct “is not consistent with someone who would be trying to hide child abuse [.]”
As stated above, Dr. Lakin characterized Nathaniel’s skull fracture and soft tissue
injuries sustained on October 30, 2007 as “significant injur[ies]” and she expressly
acknowledged that the force necessary to inflict Nathaniel’s skull fracture could potentially
have caused great bodily harm. Dr. Lakin found Nathaniel’s injuries inconsistent with
Jimmy, Jr. having struck him with a telephone. Specifically, she opined that Jimmy, Jr., as
a developmentally delayed eighteen-month-old, lacked both the strength to fracture his skull
and the coordination to inflict “repeated blows.” When questioned as to why a physician
would state that Nathaniel’s injuries were consistent with the history given, Dr. Lakin again
stated her opinion that the injuries and history were inconsistent and she explained that
“studies do support that physicians are very reticent in referring suspected cases of child
maltreatment.”
Moreover, Officer Strickland examined the telephone allegedly used in the assault,
and he observed no sharp edges which could have caused the extensive scratches on
Nathaniel, and he was unable to produce such scratches on himself. He testified regarding
the short distance between Nathaniel’s crib and the shower, and he opined that someone in
the shower would be able to hear a child screaming. DCS personnel described Mother’s and
Father’s attempts to blame the children’s foster parents for their injuries.
The trial court specifically credited the testimony of Officer Strickland, Dr. Lakin, and
DCS personnel Maria Mullins, Beverly Frisch, April Smith, and Misty Ballard. After
thoroughly reviewing the testimony and evidence presented in this case, we find no basis for
-13-
overturning the trial court’s credibility determinations with regard to the live witnesses.
Moreover, conducting our own assessment of Dr. Lakin’s testimony by deposition, we find
it appropriate to credit, and therefore rely upon, her expert testimony. See Foreman, 272
S.W.3d at 571 (citation omitted).
The overwhelming evidence in this case indicates that Nathaniel’s injuries could not
have occurred in the manner explained by Mother and Father. We simply find it implausible
that eighteen-month-old Jimmy, Jr. could have climbed into his brother’s crib while carrying
a telephone or that he possessed the forethought to slide his weapon into the crib prior to
entry. Even if we assume, arguendo, that he could do so, the testimony indicates that he
nonetheless lacked the ability to inflict repeated blows to Nathaniel’s head in order to cause
both the significant scratching to his face and the skull fracture, and that, at a minimum,
Mother should have heard Nathaniel’s screams for help.
We are not persuaded by Mother’s version of the events of October 30, 2007, and we
find most plausible that Nathaniel’s injuries were inflicted by the only adult present that
night–Mother. However, even if Nathaniel’s injuries were somehow inflicted by a minor
child, Mother certainly would have heard the commotion and should have intervened sooner
in order to prevent serious injury. In sum, we find clear and convincing evidence exists to
support a finding of severe abuse to Nathaniel by Mother.
b. Father
Again, the trial court found that Father, like Mother, had severely abused Nathaniel.
Despite Father’s testimony that he was at work when Nathaniel was injured, direct evidence
that Father actively engaged in or witnessed abuse of his children is not necessary to find that
he is guilty of severe child abuse and that the children are dependent and neglected. In re
H.L.F., 297 S.W.3d 223, 236 (Tenn. Ct. App. 2009). “[A] parent who has not directly
abused her own child may still be found to have committed severe child abuse if she
‘knowingly exposed the child to, or knowingly failed to protect the child from, conduct
constituting severe child abuse.’” Id. (quoting In re R.C.P., No. M2003-01143-COA-R3-PT,
2004 WL 1567122, at *6 (Tenn. Ct. App. July 13, 2004)).
“Knowing” and “knowingly” are not defined in Tenn. Code Ann. § 37-
1-102, or in any other statute pertaining to dependency and neglect
proceedings to terminate parental rights or in other civil proceedings involving
juveniles. “The words ‘knowing’ and ‘knowingly’ do not have fixed or
-14-
uniform meanings, and their meanings vary depending on the context in which
they are used or the character of the conduct at issue.”
A parent who is present when a child is abused but who fails to
intervene to protect the child has knowingly exposed the child to, or has failed
to protect the child from, abuse. The “knowing” requirement in Tenn. Code
Ann. § 37-1-102 (b)(21), however
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.
Accordingly, a parent’s conduct is “knowing, and a parent acts or fails to act
‘knowingly,’ when . . . she has actual knowledge of the relevant facts and
circumstances or when . . .she is either in deliberate ignorance of or in reckless
disregard of the information that has been presented to . . . her.”
Id. (internal citations and footnotes omitted).
In this case, the trial court’s finding of severe abuse was limited to Nathaniel’s injuries
sustained on October 30, 2007. However, the existence of prior abuse to any of the children
could have imputed Father with liability for Nathaniel’s severe injuries of October 30, 2007.
Dr. Lakin’s skeletal survey revealed the presence of healing fractures in Jimmy, Jr., but Dr.
Lakin was unable to pinpoint when the injuries occurred, even suggesting that the injuries
may have occurred when the children were in foster care. Conflicting evidence was
presented regarding the existence of, cause of, and seriousness of, the children’s other
“marks.” Based upon Father’s apparent absence from the home when Nathaniel was injured
and the lack of proof that the children were abused prior to October 30, 2007, we reverse the
finding of severe abuse to Nathaniel by Father.
2. Dependency and Neglect
On appeal, Mother and Father argue that they did not abuse their children, and that if
abuse did occur, it was at the hands of the children’s foster parents. As stated above, Jimmy,
Jr.’s healing fractures could not be definitively linked to Mother and Father. However, our
finding that Nathaniel was severely abused by Mother is sufficient to render the children
dependent and neglected even if no other abuse occurred. By perpetrating severe abuse
against Nathaniel or willingly placing her children in a home where she should have
-15-
recognized that abuse was occurring on that night, Mother provided “improper guardianship
or control so as to injure or endanger the morals or health” of Dakota, Jimmy, Jr., and
Nathaniel, so as to render them dependent and neglected pursuant to Tennessee Code
Annotated section 37-1-102(b)(12)(F). (emphasis added). The severe abuse against
Nathaniel provides clear and convincing evidence to support this finding, and Mother’s and
Father’s assertions to the contrary are without merit.
IV. C ONCLUSION
For the aforementioned reasons, we affirm the dependency and neglect finding and
the severe abuse finding with regard to Mother. However, we reverse the severe abuse
finding with regard to Father. Costs of this appeal are taxed to Appellants, Roseanna R. and
Jimmy Dale R., and their surety, for which execution may issue if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
-16-