In Re Isaiah L.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 4, 2010 Session

IN RE ISAIAH L.

STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES
v.
DIANNE P.

An Appeal from the Circuit Court for Davidson County
No. 09-D-315 Phillip E. Smith, Judge

No. M2009-02455-COA-R3-JV - Filed October 29, 2010

This is an appeal from a finding of dependency and neglect. An off-duty employee of the
petitioner Tennessee Department of Children’s Services witnessed the respondent mother
hitting the subject child in the parking lot of a retail store. After an investigation, the State
filed a petition for dependency and neglect, alleging abuse based on the parking lot incident.
The juvenile court determined that the child had been abused and held that the child was
dependent and neglected. The mother appealed to the circuit court, which conducted a two-
day trial de novo. After hearing the evidence, the circuit court below entered an order finding
by clear and convincing evidence that the child had been abused and declaring the child to
be dependent and neglected. The mother now appeals. We affirm.

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

H OLLY M. K IRBY , J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Anne M. Davenport, Nashville, Tennessee, for the Respondent/Appellant, Dianne P.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General;
and Elizabeth P. McCarter, Senior Counsel, for the Petitioner/Appellee, State of Tennessee
Department of Children’s Services
 OPINION

F ACTS AND P ROCEEDINGS B ELOW

The child involved in this action, Isaiah L., was born to Respondent/Appellant Dianne P.
(“Mother”) on August 2, 2003, when Mother was forty-five years old. Upon his birth, the
Petitioner/Appellee State of Tennessee Department of Children’s Services (“DCS”)
immediately took custody of the child due to Mother’s history of child abuse with DCS. The
child was placed in the custody of his father, Charles L. (“Father”), who was never married
to Mother.

In May 2004, Mother regained custody of Isaiah. She obtained governmental services to help
her raise the child, including assistance from Help Us Grow Successfully (“HUGS”), a
government program that provides services to women who have children from birth to age
six. At some point, the child was diagnosed as developmentally delayed, and engaged in
severe tantrums and episodes of acting out. The child was provided therapy and began
kindergarten in special education classes. Mother struggled to deal with Isaiah’s special
needs due to her own physical and mental challenges.

The incident that gave rise to the instant petition occurred on November 4, 2008, when the
child was five years old. On that day, Mother had taken Isaiah shopping at a retail shoe store.
Inside the store, the child was non-compliant, running around in the store, and Mother was
unable to gain control of him. Mother went out to the store parking lot to wait for Isaiah, and
asked a couple of passersby to retrieve the child for her.

At that point, an off-duty employee of DCS, Kenya Clark (“Clark”), arrived in the shoe store
parking lot. Mother’s behavior attracted Clark’s attention; the trunk of Mother’s car was
open, and Mother was sitting on the back end of her car with a cane, yelling at no one in
particular and acting oddly. Clark saw the child come out of the store and approach Mother
in the parking lot. Mother then grabbed the child and repeatedly struck him, and yelled at
him as he tried to get away. The number and location of the blows to the child is disputed.
Alarmed by what she was seeing, Clark approached Mother and asked her to stop hitting the
child. When Clark identified herself as a DCS employee, Mother told Clark that she was
leaving, and began putting the child in her car. Clark informed Mother that the police were
on their way and that she needed to wait until the police arrived. When the police arrived,
they interviewed Mother, Clark, and others on the scene. Subsequently, Mother was allowed
to take the child home, with the understanding that DCS would conduct further investigation.

Later that evening, DCS investigator Latasha Bryant (“Bryant”) went to Mother’s home to
investigate the incident Clark witnessed. She observed fresh linear marks and whelps on

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Isaiah’s body. Bryant interviewed Isaiah and Mother separately, with Isaiah first. The child
told Bryant that Mother had caused the marks Bryant observed by striking him repeatedly
with a “twitch.” When Bryant then interviewed Mother, she was hostile to Bryant, accusing
DCS of wanting to take Isaiah from her as it had taken her other children. She denied
striking the child and told Bryant that the marks were on Isaiah after he returned from a visit
with Father, intimating that Father was responsible for them. Isaiah, in a nearby bedroom,
apparently overheard Mother’s statement, and ran into the room where Bryant was
interviewing Mother and said, “No, Mommy, you did it.” Mother urged Isaiah to tell Bryant
that Father was responsible for his wounds, but the child insisted, “No. Mommy you did it.”

On November 7, 2008, DCS filed a petition in the Davidson County Juvenile Court for
custody of the child, with a request for emergency removal and for child support. After an
initial hearing, the Juvenile Court granted the DCS petition on the same day. The Juvenile
Court appointed a guardian ad litem (“GAL”) for the child, and counsel was appointed for
Mother. The same day, DCS conducted a team and family meeting on Isaiah, after which the
child was placed in the custody of Father, who had been exercising regular visitation
pursuant to a Juvenile Court visitation order entered in 2004.

The Juvenile Court conducted a trial on December 9, 2008, in which it heard testimony from
numerous witnesses. The appellate record does not include a transcript of the Juvenile Court
proceedings, but it indicates that the Juvenile Court heard testimony from Clark, Bryant, the
child’s teacher, the child’s therapist, and the HUGS nurse who had assisted Mother with
Isaiah. Mother did not testify. After hearing the testimony, on December 15, 2008, the
Juvenile Court entered a lengthy order with detailed findings. The Juvenile Court found by
clear and convincing evidence that the child had been subjected to abuse by Mother and was
a dependent and neglected child. Pursuant to Tennessee statutes, Mother appealed the
findings of the Juvenile Court to the Davidson County Circuit Court.1

On May 19 and 20, 2009, the Circuit Court conducted a de novo trial. The Circuit Court
heard testimony from essentially the same witnesses who testified before the Juvenile Court.
In addition, the Circuit Court heard testimony from Mother.

DCS employee Clark testified at the outset, describing what she witnessed in the shoe store
parking lot on November 4, 2008. Clark said that, as she drove into the parking lot, she saw
a woman whom she identified as Mother; the trunk of her car was open and she was sitting
on the back end of her car. Clark noticed that Mother had a cane. Mother was speaking

1
Tennessee Code Annotated § 37-1-159 governs appeals from the juvenile courts. It provides in pertinent
part that “any appeal from any final order or judgment in . . . [a] dependent and neglect proceeding . . . may
be made to the circuit court,” to be reviewed de novo. T.C.A. § 37-1-159(a) (2005).

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loudly at no one in particular and “behaving rather wildly and bizarre.” Clark described it
as “belligerent talking. Just a bunch of loud cussing.” At that point, the child was nowhere
in sight. Clark then saw the child exit the shoe store. Seeing him, Mother motioned to the
child to come to her, saying “I’ll whoop your ass,” and similar things, as the child walked
slowly and tentatively toward her. As the child approached, Clark said, Mother grabbed the
child, knocked him to the ground, and dragged him across the pavement. She then picked
him up and proceeded to hit him with an open hand with “all the force she could muster” on
his head, back, arms, and legs, wherever she could reach. The child was screaming and
crying, and asking Mother to stop, and as he would get up and try to get away, Mother would
grab him and hit him some more. Clark said that she could hear the blows to the child’s body
from several feet away, and she estimated that Mother hit the child twenty or more times.

When Clark saw what Mother was doing, she got out of her car, approached Mother, and
asked Mother what she was doing. While still hitting the child, Clark said, Mother replied,
“Beating this child.” Clark said that Mother did not stop hitting the child until Clark told her
that she worked for DCS and asked if she could help. Mother then told Clark, “I can’t do
anything with him,” and she asked Clark to help her get the child into Mother’s car. Clark
told Mother that she could not leave with the child because the police had been called 2 and
she needed to wait for the officers. As Mother continued to try to get the child into her car
so that she could leave, Clark warned Mother that she had taken a photograph of her vehicle
license plate, so that she would later be located if she chose to leave the scene. Clark also
told Mother that she was going to file a report with DCS on the incident, because Mother had
been hitting her child and the child appeared to be afraid of Mother.

Clark testified that it took the police about forty minutes to arrive. As they waited, Clark
said, Mother continued to act bizarre and belligerent. Mother cursed Clark and rejected her
offer of DCS services; she told Clark this was because Clark was rich and Mother was not,
and that DCS was jealous of Mother and that DCS wanted to take her child. Mother
continued to pace about and yell, was at times incoherent, and had foam at the corners of her
mouth. Clark attempted to calm Mother, to no avail.

As they waited for the police to arrive, Clark took the child aside and spoke to him. Clark
observed that the child had fresh bruises on his knees and arms, as well as “scrapes and
things” on his head, arms, and legs. The child lifted his shirt and revealed linear “whelp-like
marks” on his stomach and back, and she saw other marks on his forehead. When Clark
asked the child where the marks came from, he stated, “My mommy hit me with a twitch.”

2
Clark’s testimony was somewhat unclear on whether she told Mother that the police had already been called
or if she told Mother that she had photographed her car license number and was going to call the police.

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He told Clark more than once that his mother had caused his injuries, and gave no other
explanation for them. The child told Clark that he was afraid of Mother.

Clark testified that, when the police arrived, she described to them what she had witnessed.
The officers spoke to other bystanders who were on the scene. Ultimately, Clark said, the
officers allowed the child to go home with Mother, explaining their decision to Clark by
saying that parents discipline their children in different ways. After that, Clark called DCS
to make a referral on Mother; she reported the situation as one that required immediate
attention.

DCS investigator Bryant testified next. On the evening of the incident, Bryant went to
Mother’s house with two police officers to investigate. Bryant said that, when she arrived,
Mother immediately said that she knew DCS would be coming, because DCS had a
preconceived agenda and had “always wanted her children.” When Bryant told Mother that
she wanted to interview the child alone, Mother initially resisted, but then relented when
Bryant said that one of the police officers would be present in the interview as well.

Bryant first interviewed Isaiah in a bedroom, out of Mother’s presence. When Bryant asked
Isaiah about the scratches on his face, he said that Mother had inflicted them. When she
asked if he had any other marks, the child lifted his shirt and showed linear whelps on his
chest and stomach; Bryant also noticed that he had marks on his legs and scratches on his
knees. The child said that all of his wounds had been caused by Mother, using her “twitch.”
He explained that a “twitch” was like a tree branch. Some of Isaiah’s marks and scabs were
older, but the scratches on his knees appeared to be fresh. When Bryant asked Isaiah what
happened earlier that day, he said that he had gotten into trouble and Mother had spanked
him. Bryant took photographs of the marks on Isaiah’s body, which were entered into
evidence.

After Bryant interviewed Isaiah, she then interviewed Mother, leaving Isaiah in the bedroom.
Bryant said that interviewing Mother was difficult, because Mother interrupted Bryant
frequently and asked Bryant several times to leave the house. When Bryant would prepare
to leave, Mother would then stop her and agree to answer more questions. This apparently
happened repeatedly.

In the course of the interview, Mother told Bryant that she had five other children, one in the
custody of his father, two taken into DCS custody who had aged out of the system, and
another two to whom Mother’s rights had been terminated. Each of the five children had at
one time or another been removed from Mother’s custody by DCS. Mother initially told
Bryant that some of the other children “went to the Judge” and lied about being abused.
Later, in the same interview, Mother admitted to Bryant that she had abused her older

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children, but “[swore] to God that she did not abuse Isaiah.” Bryant stated that it was
difficult for her to follow the thread of Mother’s conversation, because Mother would jump
back and forth between discussing issues regarding Isaiah, and things that happened with her
other children in years prior.

In response to Bryant’s questions, Mother told Bryant that she did not cause the marks Bryant
had seen on Isaiah’s body. Mother indicated that she first saw the marks when Isaiah
returned from a visit with his father. Mother intimated to Bryant that Father had caused the
bruises and marks on the child. At that point, Isaiah ran out of the bedroom and blurted out,
“No, Mommy you did it.” Mother then went to Isaiah and told him to tell Bryant that Father
had caused the marks, but the child insisted, “No. Mommy you did it.” Bryant then asked
one of the police officers to stay in the bedroom with Isaiah so that he could not further
interrupt her interview with Mother.

After that, Mother speculated to Bryant that Isaiah may have caused the bruises himself by
banging his head against a table and throwing his body against the table or wall. Mother
claimed that she had actually witnessed Isaiah doing such things. Mother asserted to Bryant
that Isaiah had a disability called disturbed emotional disorder, and that, due to this condition,
he frequently “makes things up” and inflicts his own injuries. Bryant testified that she did
not believe Mother’s assertion that the child had inflicted his own injuries, because the marks
on him were not consistent with the conduct Mother described.

Bryant testified that Mother initially told her that she sometimes used the back of a hairbrush
as an instrument to discipline Isaiah. Later in the interview, however, Mother explained that
she only used the hairbrush in the course of playing a game with the child’s hands. Mother
denied ever using a switch or a belt to discipline the child. Mother told Bryant that she had
attended parenting classes at the behest of DCS on prior occasions, and she learned in those
classes that using a belt or a switch was an inappropriate way to discipline a child.

Bryant said that when she told Mother that Isaiah might have to be placed in DCS protective
custody, Mother became very upset. She told Bryant that she is poor, and asserted that DCS
was trying to keep her poor, in that, if Isaiah were taken into DCS custody, Mother could not
survive because she would no longer receive the child’s disability checks.3 Bryant testified
that Mother said that “there would go her livelihood.” In addition to the child’s disability
checks, Mother said she received child support from Father, which she likewise would no
longer receive if the child were removed from her custody. Mother told Bryant that she
received disability benefits on her own behalf, because she had trouble walking without a

3
The record does not show the precise reason that the child was determined to be disabled, but indicates that
the child was born prematurely, was developmentally delayed, and had behavioral issues.

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cane, but apparently believed those benefits were insufficient. In response to Bryant’s
inquiry, Mother denied any mental health issues.

After the interviews, Bryant arranged for removal of Isaiah from Mother’s home that
evening. Bryant said that she attempted to work out a temporary arrangement that would
avoid foster care, but that, initially, foster care was the only option. On November 7, 2008,
DCS filed the dependency and neglect petition in the Juvenile Court.

On the same day that the dependency and neglect petition was filed, Bryant testified, DCS
conducted a child and family team meeting with Mother and Father to determine where
Isaiah should be placed. At that meeting, Mother stated that, due to her health problems, she
had been asking Father to take custody of the child. After the meeting, the child was placed
in the custody of Father, where he has remained since that time. Bryant testified that she
offered Mother DCS services to help her prepare to reacquire custody of Isaiah, but Mother
refused those services and did not call Bryant later to ask for such services. Since the child
has been in the custody of Father, Bryant stated, there had been no reports of abuse, nor any
DCS referrals on Father.

At some point, Mother called Bryant to tell her that, since Isaiah was born, she had been
working with a HUGS nurse, Dianne Bauer. Mother indicated to Bryant that Bauer could
corroborate that Isaiah would at times bang his head on a table. Bryant also discovered that
Isaiah had been treated for behavioral issues at Centerstone of Nashville, beginning in July
2007. Bryant’s involvement in Isaiah’s case ended after the child was brought into custody,
and the case was transferred to another caseworker.

Several witnesses were called to testify on Mother’s behalf. Willy Wyatt (“Wyatt”), an
officer with the Shelby County Sheriff’s office, was off-duty and at the shoe store as a
customer on the day of the incident at issue. Wyatt testified that he saw Isaiah “running all
over the place” in the shoe store, and he also saw Mother’s unsuccessful attempts to get the
child to come to her. Wyatt described Isaiah as “hyper and non-compliant,” and said that
Mother seemed handicapped and unable to move as quickly as the child. Later, after Wyatt
had gone to the parking lot and gotten in his vehicle, he looked up and saw Mother hitting
Isaiah in the parking lot, and the child was crying. Wyatt said that he saw Mother hit the
child three or four times. He characterized it as “a little more than spanking,” and said
Mother’s behavior was “a little over the top” because it was done in public. Wyatt did not
recall hearing Mother directing profanity toward the child. He commented that, although he
might “disagree with it,” he generally chooses not to get involved in parent/child disputes
unless he feels that the child is really in danger. Wyatt said that he did not intervene in this
instance because he did not perceive that Isaiah was in danger. Wyatt saw Clark arrive and

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intervene, and he stayed on the scene until the police arrived, in order to help Clark if the
situation were to escalate. He gave a statement to the police when they arrived.

Officer Guy Struder (“Officer Struder”) was one of the police officers who responded to
Clark’s call to the police. When he arrived at the shoe store parking lot, Officer Struder
testified, he spoke with Mother, Clark, Wyatt, and other persons on the scene. By the time
he arrived, some thirty minutes after receiving the call, Isaiah did not appear to be injured,
and he was sitting on the curb next to Clark; he did not look like he had been upset or crying.
Officer Struder stated that, after his investigation, he, Mother, and Clark all agreed that
Mother could take the child home, with the understanding that DCS would conduct a further
investigation of the incident.

Dianne Bauer (“Bauer”), the HUGS nurse who assisted Mother and Isaiah, testified on
Mother’s behalf. Bauer stated that, in August 2003, just after Isaiah was born, she received
a referral from Vanderbilt Hospital to offer assistance to Mother by providing education
about infant care, nutrition, growth, and development through an in-home program. Initially,
Isaiah was in Father’s custody. When Mother obtained custody in May 2004, however, she
called Bauer to accept the assistance previously offered. Bauer was involved with Mother’s
case from May 2004 until November 2008, when Isaiah was removed from Mother’s
custody. Bauer began by visiting once per week, but later reduced her visits to once or twice
a month.

Bauer testified that Isaiah had bad temper tantrums, and she recommended that Mother seek
help at Centerstone. Bauer witnessed one of Isaiah’s bad tantrums in May 2008, when the
child was four years old. Bauer said that she was having a pleasant visit with Isaiah when
he suddenly “just got out of control and started screaming, biting, and hitting” and pulled out
his own baby tooth. In response, Bauer said, Mother held Isaiah for a few minutes, and the
child calmed down. Bauer reported the incident to the child’s case manager at Centerstone.
On another occasion, in October 2008, when Bauer was in her car waiting for Mother and
the child to arrive home from school, she saw Isaiah get out of Mother’s car and begin “just
running everywhere.” Mother became frustrated because her mobility problems prevented
her from running after the child, so Bauer ran after him out of concern that Isaiah might get
hit by a car. It took both Bauer and another bystander to get Isaiah into Mother’s apartment,
while he was kicking and screaming all the way. When they arrived at Mother’s home,
Isaiah was kicking, screaming, and biting Mother, and he kicked Bauer in the shins, yelling,
“Leave me alone.” Bauer said that Mother just “popped” Isaiah gently on the bottom a
couple of times, and then grabbed Isaiah and held him to restrain him.

In response to questions, Bauer testified that Isaiah did not exhibit fear of Mother; in fact,
“[j]ust the opposite.” Bauer observed that Isaiah “was extremely attached to” Mother, and

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she had no reason to suspect that Mother abused the child. Bauer said that Mother followed
up on all of her recommendations, and Bauer never saw Mother do anything inappropriate
to the child.

Bauer stated that although Mother did not ask for mental health services, Bauer was aware
that Mother had received mental health services when she was a teenager. Bauer was
concerned that Mother suffered from anxiety or depression, but Bauer could do nothing more
than inform Mother about services that might help her. Bauer did not believe that Mother’s
mental health issues interfered with her ability to care for Isaiah.

Latoya Anderson (“Anderson”), Isaiah’s kindergarten teacher for the school year beginning
August 2008, testified as well. Anderson said that Isaiah began kindergarten as a special
education student because he had been diagnosed with “developmental delay.” 4 While Isaiah
was a little more active than the other children, Anderson said, he generally was “good-
natured and cooperative.” Anderson saw nothing about Isaiah that caused her to believe that
he was the victim of abuse or neglect.

Anderson indicated that, since Isaiah began living with Father, he has rapidly progressed in
his behavior and his schoolwork. At the beginning of the school year, Isaiah was wearing
a pull-up style diaper, but at the time of trial, he was no longer wearing one. Also, she stated,
Isaiah no longer needed special education classes, and he was expected to progress to a
regular first grade class. Anderson attributed Isaiah’s progress to the consistency of his
routine while living with Father.

The Circuit Court also heard testimony from Tanisha Marie Baldwin (“Baldwin”), a social
worker who was Isaiah’s therapist at Centerstone. Baldwin had seen Isaiah only a few times
since she was assigned the case in August 2008; a different therapist worked with Isaiah prior
to that. Baldwin said that she did not see Isaiah after he was removed from Mother’s home
and placed with Father. Baldwin testified that Isaiah had been diagnosed with adjustment
disorder and developmental delay, based on Mother’s reports to the prior therapist. During
one thirty-minute visit with Isaiah, Baldwin said, he was “out of control,” and “all over the
lobby, all over the treatment room, couldn’t be controlled.” Baldwin initially said that she
saw no signs that Isaiah was an abused child, but later conceded that it had not occurred to
her that Isaiah’s bad behavior could be a response to abuse.

Finally, Mother testified on her own behalf. Mother said that, from the time she gained
custody of Isaiah in May 2004, she had been attentive to his special needs. She took the child

4
Isaiah received speech and language therapy, as well as occupational therapy to learn how to use writing
utensils and scissors.

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to a speech therapist when he was three years old, and began taking him to Centerstone twice
a month beginning when he was four years old. Mother said that Isaiah began acting out
after his visits with Father, telling Mother that he wanted to live with Father. Mother
described severe tantrums, kicking Mother and pulling her hair. Mother said that she always
encouraged the relationship between the child and Father. Mother testified that, at DCS
direction, she attended parenting classes, at which she learned that she should never use a
belt or switch to discipline a child.

Mother testified about the shoe store incident on November 4, 2008. Mother explained that,
when she was ready to leave the shoe store, Isaiah refused to leave with her. Mother went
outside to wait for him, and she asked two passersby to go in and retrieve Isaiah for her. She
claimed that, while she was waiting, she was simply at her car with the radio on, singing.
When Isaiah came out, Mother conceded, she was “kind of loud,” asking him why he did not
come when she instructed him. Mother testified that she “grabbed him, and . . . whipped him
three or four times” on his bottom. She explained that she grabbed Isaiah because he would
not obey her, and he continued to try to fight with her. At that point, Mother said, Clark
approached her and told her she could not do that. Mother denied Clark’s assertion that she
had hit Isaiah twenty times. Mother said that, when Clark approached, she explained to Clark
that she was spanking the child, not beating him.

Mother testified that she did not have first-hand knowledge of how Isaiah obtained the marks
on his body, but asserted that he came home with the marks after visiting with Father. She
stated that some of the marks reportedly resulted from Isaiah’s attempt to ride a bike while
with Father, and other marks came from playing with other children while in Father’s care.
Mother said that she did not know why Isaiah would say that she caused the marks on his
body.

Mother told the Circuit Court that she was diagnosed with diabetes in November 2008, just
after the incident in question. By then, she said, she was experiencing numbness in her feet
due to the poor circulation caused by the diabetes. Prior to that, Mother said, she had had no
physical problems.

Asked about any current mental illness, Mother responded that she had anger management
issues stemming from her anger at DCS for removing her children from her custody. In
response to a question about whether she was receiving disability benefits, Mother said that
she was receiving such benefits because of her mental health history. She explained that she
was placed in a mental institution in the late 1970’s and early 1980’s‚ from the time she was
15 or 16 years old until she was 21 or 22 years old. She stated that she had severe problems
with her family, particularly her mother. Mother confirmed that she was currently considered
to be disabled as a result of her mental health history. After being released from the mental

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health facility in her twenties, Mother said, the next time that she saw a mental health
professional was in 2003 or 2004, when DCS took custody of her older children. Mother
indicated that, when she saw a therapist at Centerstone in March 2009, she was diagnosed
with a mental health disorder. When asked what the diagnosis was, Mother replied, “I don’t
know. I don’t know. . . . I don’t know what they diagnosed me with.”

As follow up, the GAL asked Mother, “[D]o you know if you’ve been diagnosed with
schizophrenia?” This question drew an immediate objection from Mother’s counsel, who
argued that the question was impermissible “if we’re taking about when she was a child.”
The objection was overruled. Mother denied that, in the past, her mental health diagnosis
was schizophrenia. She was then asked, “Have you been told what it [your diagnosis] was
when you were at MTMHI [the mental institution]?” Mother answered, “When I was at
Central State [mental institution] I was told by a doctor that I was, but since I’ve been out,
no.”

Mother acknowledged that, as of the time of trial, Isaiah was no longer considered disabled
by the Social Security Administration, and that the child’s behavior had improved since being
placed with Father. She surmised that Isaiah was doing well because he “wants to be with
his dad.”

During the trial, in the course of marking certain documents as trial exhibits, the Circuit
Court indicated that the Juvenile Court order being appealed should be made an exhibit.
Counsel for Mother objected, arguing that the trial in Circuit Court was to be conducted de
novo, without deference to the decision of the Juvenile Court. The Circuit Court overruled
the objection, and directed that the Juvenile Court order be marked and admitted into
evidence as Exhibit 4. The Circuit Court noted that Rule 36(e) of the Tennessee Rules of
Juvenile Procedure provides that the entire juvenile court record must be sent to the circuit
court when an appeal is perfected. Therefore, the Circuit Court held that “the statute and the
rule contemplates [sic] that the Court consider the findings and recommendations” of the
Juvenile Court judge.

C IRCUIT C OURT D ECISION

On September 4, 2009, the Circuit Court entered an order granting the DCS dependency and
neglect petition, finding by clear and convincing evidence that Mother had perpetrated abuse
on Isaiah and that the child was dependent and neglected, pursuant to Tennessee Code
Annotated § 37-1-102(b)(1)5 and (b)(12)(B)(F) & (G).6 In its order, the Circuit Court

5
Section 37-1-102(b)(1) states:
(continued...)

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reviewed the evidence and made detailed findings of fact. It held specifically that Clark and
Bryant were “credible and believable” witnesses, and that their testimony was the basis for
the dependency, neglect, and abuse determination. The Circuit Court stated that the
testimony of Officer Struder, Bauer, Anderson, and Baldwin had no bearing on the Court’s
decision, because they did not witness the November 4, 2008 incident that led to the filing
of the petition. The Circuit Court found that Wyatt’s testimony was credible, but that his
testimony actually “bolster[ed] the DCS claim.” The Circuit Court found that Mother was
not a credible witness, noting specifically that she was evasive when asked about her mental
health, and commented that it had “serious concerns about [Mother’s] mental health.” The
Circuit Court explained, “[Mother] testified that she was last treated for mental health issues
in 2003. However, [Mother] further testified that she recently underwent a mental health
evaluation at Centerstone but could not remember her diagnosis.” The Circuit Court further
noted that Mother could not explain why Isaiah would accuse her of hitting him, or offer any
motivation for Clark to lie in her testimony. Overall, the Circuit Court found that Mother
“lacks credibility and that Kenya Clark accurately described the events of November 4, 2008

5
(...continued)
(b) As used in this part, unless the context otherwise requires:

(1) “Abuse” exists when a person under the age of eighteen (18) is suffering from, has
sustained, or may be in immediate danger of suffering from or sustaining a wound, injury,
disability or physical or mental condition caused by brutality, neglect or other actions or
inactions of a parent, relative, guardian or caretaker . . . .

T.C.A. § 37-1-102(b)(1) (Supp. 2009).
6
Section §7-1-102(b)(12) states in pertinent part:

(12) “Dependent and neglected child” means a child:
...

(B) Whose 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;
...

(F) 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;

(G) Who is suffering from abuse or neglect . . . .

T.C.A. § 37-1-102(b)(12)(B), (F), & (G).

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to the Court.” The Circuit Court stated that Mother’s history with DCS was not considered
as a relevant factor in the Court’s decision.

Based on the evidence, the Circuit Court concluded that “the Mother’s repeated blows to this
child constitutes acts of physical abuse.”7 It held that it was in the best interest of the child
to be removed from Mother’s custody, and found that Isaiah could not be returned to her
custody until she met the provisions of Tennessee Code Annotated § 37-1-130(c).8 Mother
later filed a motion to alter or amend the judgment, which was denied. Mother now appeals.

ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Mother argues that the Circuit Court erred in allowing the hearsay testimony of
Mother on cross-examination regarding her diagnosis of schizophrenia as a teenager. Mother
argues that this error constitutes grounds for reversal because it adversely affected Mother’s

7
The Circuit Court found that DCS had not put forth clear and convincing evidence to support its allegations
that Mother caused the older injuries to Isaiah.
8
Section 37-1-130(c) provides:

(c) If the child is found to be dependent and neglected under § 37-1-102(b)(12)(G) as a
result of brutality or abuse, the court shall not return the child under subsection (a) or §
37-1-139(b), (d), or (e) to the custody or residence of any person who engaged in or
knowingly failed to protect the child from the brutality or abuse until the court has received
and considered reports and recommendations prepared in light of the possible return of the
child by:

(1) The commissioner of children’s services, if the person has been found
to have committed severe child abuse, or, if there has been no such finding,
by the commissioner's designee having a master’s degree in social work or
equivalent training and experience; and either, as the commissioner deems
appropriate;

(2) A psychiatrist or, in the alternative, a physician and a psychologist,
based on professionally appropriate examinations of the child and of the
person who engaged in or failed to protect the child from the brutality or
abuse; or

(3) A multi-disciplinary protective services team of the department of
children's services based on professionally appropriate examinations of the
child and of the person who engaged in or failed to protect the child from
the brutality or abuse.

T.C.A. § 37-1-130(c) (Supp. 2009).

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credibility, an important factor in the Circuit Court’s assessment of the evidence in this case.
In addition, Mother argues that the Circuit Court erred in permitting the Juvenile Court’s
December 15, 2008 order to be entered into evidence as an exhibit at trial. Mother contends
that entering the order into evidence gave it undue importance, particularly in light of the fact
that the Circuit Court’s review is to be de novo, with no deference given to the Juvenile
Court’s decision.9

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. Troxel v. Granville, 530 U.S. 57, 65 (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). While this right is
fundamental and superior to the claims of other persons, it is not absolute. DCS v. C.H.K.,
154 S.W.3d 586, 589 (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. 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).

Dependency and neglect proceedings are governed by statute in Tennessee. The Juvenile
Court has “exclusive original jurisdiction” to determine whether a child is dependent and
neglected. § 37-1-103(a)(1) (Supp. 2009). The term “dependent and neglected child” is
defined by statute:

“Dependent and neglected child” means a child:

(A) Who is without a parent, guardian or legal custodian;

(B) Whose 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;

(C) Who is under unlawful or improper care, supervision, custody or restraint
by any person, corporation, agency, association, institution, society or other
organization or who is unlawfully kept out of school;

9
Mother argues that the finding of abuse, and the resulting finding of dependency and neglect, should be
reversed. She does not appear to argue that she is entitled to regain custody of the child based on her
satisfaction of the requirements in Tennessee Code Annotated § 37-1-130(c).

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 (D) Whose parent, guardian or custodian neglects or refuses to provide
necessary medical, surgical, institutional or hospital care for such child;

(E) Who, because of lack of proper supervision, is found in any place the
existence of which is in violation of law;

(F) 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;

(G) Who is suffering from abuse 10 or neglect;

(H) Who has been in the care and control of an agency or person who is not
related to such child by blood or marriage for a continuous period of eighteen
(18) months or longer in the absence of a court order, and such person or
agency has not initiated judicial proceedings seeking either legal custody or
adoption of the child; or

(I) Who is or has been allowed, encouraged or permitted to engage in
prostitution or obscene or pornographic photographing, filming, posing, or
similar activity and whose parent, guardian or other custodian neglects or
refuses to protect such child from further such activity . . . .

T.C.A. § 37-1-102(b)(12) (footnote added). An allegation that a child is dependent and
neglected must be established by clear and convincing evidence. T.C.A. § 37-1-129(c)
(2005). For evidence to meet the clear and convincing standard, it must eliminate any serious
or substantial doubt about the correctness of the conclusions to be drawn from the evidence.
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 n. 3 (Tenn. 1992)). The evidence should produce a firm belief or conviction
as to the truth of the allegations sought to be established. In re M.L.P., 228 S.W.3d 139, 143
(Tenn. Ct. App. 2007). Clear and convincing evidence should demonstrate that the truth of
the facts asserted is “highly probable” as opposed to merely “more probable” than not. In
re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005) (quoting In re C.W.W., 37 S.W.3d
467, 474 (Tenn. Ct. App. 2000)).

10
Another statute provides that “abuse” exists when a minor child “is suffering from, has sustained, or may
be in immediate danger of suffering from or sustaining a wound, injury, disability or physical or mental
condition caused by brutality, neglect or other actions or inactions of a parent, relative, guardian or
caretaker.” T.C.A. § 37-1-102(b)(1).

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Under Tennessee Code Annotated § 37-1-159(a), an appeal from the juvenile court’s
decision on a dependency and neglect petition is to be heard by the circuit court. This statute
provides that the appeal is de novo: “The juvenile court shall be a court of record; . . . and
any appeal from any final order or judgment in . . . [a] dependent and neglect proceeding,
filed under this chapter, may be made to the circuit court that shall hear the testimony of
witnesses and try the case de novo.” T.C.A. § 37-1-159(a) (2005).

In light of the clear and convincing standard of proof, on appeal, this Court must “distinguish
between the specific facts found by the trial court and the combined weight of those facts.”
In re Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct. App. 2007). “If some of the trial court’s
factual findings are based on its determinations of the credibility of the witnesses, then this
Court will afford great weight to those credibility determinations, and will not reverse such
determinations absent clear evidence to the contrary.” Cornelius v. DCS, 314 S.W.3d at 902,
907 (Tenn. Ct. App. 2009) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.
1995)). On appeal of the Circuit Court’s decision to this Court, we review the Circuit
Court’s findings of fact de novo on the record, presuming the factual findings to be correct
unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re M.J.B., 140
S.W.3d 643, 654 (Tenn. Ct. App. 2004). The appellate court then determines whether the
combined weight of the facts, as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establishes all of the requirements
elements. In re Tiffany B., 228 S.W.3d at 156; In re S.M., 149 S.W.3d 632, 640 (Tenn. Ct.
App. 2004). “Whether the ultimate issues of dependency and neglect or severe child abuse
have been established by clear and convincing evidence are questions of law, which we
review de novo with no presumption of correctness.” Cornelius, 314 S.W.3d at 907.

A NALYSIS

On appeal, Mother argues that the Circuit Court’s finding of abuse, and the resulting finding
of dependency and neglect, must be reversed, because the Circuit Court committed reversible
error in (1) permitting testimony by Mother on cross-examination about an earlier diagnosis
of schizophrenia, and (2) entering the Juvenile Court’s dependency and neglect order as an
exhibit at trial. We address each of these in turn.

Schizophrenia

At trial, the objection of Mother’s counsel to the testimony regarding her alleged history of
schizophrenia was based on relevancy, because it was “told to a child many, many years
ago.” A trial court’s decision to admit testimony based on relevancy is reviewed for an abuse
of discretion. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). In her motion to alter
or amend, and on appeal, Mother claims that the testimony was inadmissible hearsay, and

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that Mother had no personal knowledge of her diagnosis. A trial court’s determination as to
whether a statement is hearsay or whether it is, nevertheless, admissible is also reviewed for
an abuse of discretion. State v. Stout, 46 S.W.3d 689, 697 (Tenn. 2001).

At trial, Mother testified without objection about her commitment to a mental institution
from her late teens through her early twenties. She also testified that she was, at the time of
trial, receiving disability benefits based on the diagnosis she received from that institution.
Mother did not volunteer either her diagnosis or the circumstances that led to her long stay
at the mental institution. As followup to her testimony, the GAL asked Mother directly
whether she had been diagnosed with schizophrenia during her time in the institution. As
noted by the Circuit Court, Mother’s responses to these inquiries on her mental health could
fairly be characterized as “evasive.”

Under the circumstances of this case, Mother’s prior mental health diagnosis was clearly
relevant. Mother was, at the time of trial, still receiving disability benefits based on the
diagnosis she received in her prior institutionalization. This testimony by Mother, offered
without objection, clearly tied her prior diagnosis to her current status as disabled due to her
mental health. Moreover, both Clark and Bryant, whose testimony was credited by the trial
court, gave testimony from which it could be inferred that Mother appeared mentally or
emotionally unbalanced in the shoe store parking lot on November 4, 2008, and at the DCS
investigation at her home that evening.

In light of these facts, if Mother chose to be less than forthcoming about her mental health
status, then questions from opposing counsel were to be expected. Assuming arguendo that
the question and answer at issue implicate hearsay considerations, we find that the admission
into evidence of Mother’s brief mention of a schizophrenia diagnosis was not an abuse of
discretion.

Moreover, even if the admission of this evidence was error, we find the error to be harmless
under the circumstances. In its final decision, the Circuit Court indicated that it was
Mother’s evasiveness in response to questions about her mental health, rather than any
substantive testimony about the issue, that persuaded the Circuit Court that Mother’s
testimony on the events of November 4, 2008, was not credible. Therefore, we conclude that
permitting Mother to answer a question on cross-examination about her childhood diagnosis
of schizophrenia, if error, was harmless when considered in the overall context of the two-
day trial. See Gonzoles v. Long, No. W2008-02605-COA-R3-CV, 2009 WL 3321304, at *5
(Tenn. Ct. App. Oct. 15, 2009) (citing Tenn. R. App. P. 36(b)). We decline to reverse the
Circuit Court’s finding on this basis.

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 Juvenile Court Order

Mother also argues that the Circuit Court erred in directing that the Juvenile Court order be
entered into evidence as a trial exhibit. She contends that this unduly elevated the importance
and persuasiveness of the Juvenile Court order, and undermined the statutory scheme
providing for a de novo review by the Circuit Court.

As we have noted, Tennessee Code Annotated § 37-1-159(c) requires the juvenile court to
“cause the entire record in the case, including the juvenile court’s findings” to be “taken
forthwith to the . . . circuit court whose duty it is . . . to set the case for an early hearing.”
T.C.A. § 37-1-159(c). The circuit court is to “hear the testimony of witnesses and try the
case de novo.” T.C.A. § 37-1-159(a). On appeal, the record of the juvenile court must be
provided to the circuit court. T.C.A. § 37-1-159(c). However, the circuit court is not limited
to that record. “On the contrary, the circuit court in a dependency and neglect proceeding
may not rely solely on the record made before the juvenile court, but under Tenn. Code Ann.
§ 37-1-159(c) must try the case de novo by hearing witnesses again and by rendering an
independent decision based on the evidence received in the circuit court proceeding.”
Cornelius, 314 S.W.3d at 906 (citing DCS v. T.M.B.K., 197 S.W.3d 282, 289 (Tenn. Ct.
App. 2006)). A de novo trial is “[a] new trial on the entire case – that is, on both questions
of fact and issues of law – conducted as if there had been no trial in the first instance.” Id.
(citing Kissick v. Kallaher, No. W2004-02983-COA-R3-CV, 2006 WL 1350999, at *3
(Tenn. Ct. App. May 18, 2006)).

In the case at bar, it was appropriate for the Circuit Court to consider the entire Juvenile
Court record, including the Juvenile Court’s order disposing of the case, in addition to the
evidence submitted in the de novo trial before the Circuit Court. See id. In light of the fact
that the Juvenile Court’s order was a part of the record before the Circuit Court, entering the
order as an exhibit at trial simply made the order available to the Circuit Court in two
alternative ways.11 Mother has cited to this Court no authority to the contrary. Furthermore,
the record shows clearly that the Circuit Court gave careful consideration to all of the
testimony presented in its de novo trial on the DCS petition. Therefore, we reject Mother’s
argument that the Circuit Court committed reversible error in this regard.

11
We note that the Circuit Court may have directed for the Juvenile Court order to be entered into evidence
as an exhibit so that it could be easily located. In this case, the Juvenile Court record is comprised of orders,
pleadings, and other documents, all stamped “Vic Lineweaver, Juvenile Court Clerk,” in random order, with
no apparent organization or indication of completeness. Such lack of organization renders the Juvenile Court
record of limited use to a reviewing court, either the Circuit Court or this Court.

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 C ONCLUSION

The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant
Dianne P., for which execution may issue, if necessary.

_________________________________
HOLLY M. KIRBY, JUDGE

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