In re Marcell W.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 20, 2015

IN RE MARCELL W.

Appeal from the Circuit Court for Shelby County
No. CT00119114 Robert Samual Weiss, Judge

________________________________

No. W2014-02004-COA-R3-PT – Filed July 23, 2015
_________________________________

In this parental termination case, Mother appeals the termination of her parental rights to
the minor child at issue. We affirm.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which BRANDON O.
GIBSON, J., and KENNY ARMSTRONG, J., joined.

Reginald E. Shelton, Memphis, Tennessee, for the appellant, Michelle W.

Herbert H. Slatery, III, Attorney General and Reporter; Ryan L. McGehee, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children’s
Services.

MEMORANDUM OPINION1

1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse or
modify the actions of the trial court by memorandum opinion when a formal opinion would have
no precedential value. When a case is decided by memorandum opinion it shall be designated
“MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any
reason in any unrelated case.
 I. Background

This appeal stems from a joint dependency and neglect/termination hearing that
took place in the Shelby County Circuit Court. In a separate appeal regarding the
dependency and neglect proceeding, In re Marcell W., No.W2014-02120-COA-R3-CV
(Tenn. Ct. App. July 16, 2015) (“Marcell I”), we previously affirmed the Circuit Court‟s
finding that the minor child at issue in this case was the victim of severe abuse. In this
Opinion, we address the trial court‟s termination of Mother‟s parental rights.

The minor child at issue, Marcell W.2 (“Marcell”), was born in March 2012. On
September 4, 2012, the Department of Children‟s Services (“DCS”) received a referral
concerning allegations of severe physical abuse committed against the minor child.
Marcell had been admitted to LeBonheur Children‟s Hospital (“LeBonheur”) in Memphis
for severe injuries. Tanisha Harper (“Ms. Harper”), a DCS child protective services
investigator, was assigned to investigate the situation. The medical consultation at
LeBonheur revealed that Marcell presented with a number of significant medical
conditions, including a subdural hematoma, bilateral hemorrhages, a liver laceration, and
a left buckle fracture of the arm. When investigating the case, Ms. Harper discovered
that Marcell had presented for a well-being checkup at his primary doctor the previous
Friday. No issues were found during this checkup, and by all accounts, Marcell was in
good health at that time.

Marcell and Mother spent the night at Marcell‟s grandmother‟s home following
the checkup, but they returned to Mother‟s residence later that weekend. Ms. Harper did
not discover that anything traumatic had happened to Marcell during his stay at his
grandmother‟s home. On the Sunday prior to Marcell‟s admittance to LeBonheur,
Mother apparently observed Marcell “stiffen up” periodically, but no medical action was
taken at that time. On Monday, Marcell began having repeated hiccups, and according to
Ms. Harper, Mother relayed that he became “non-responsive.” The child was
subsequently taken to the hospital.

When Ms. Harper discussed Marcell‟s injuries with Mother, Mother did not
provide a specific explanation as to how they had occurred, other than to speculate that
Marcell had hit his head on a wall. According to Ms. Harper, Mother informed Ms.
Harper that she, Marcell, and her boyfriend all slept together in the same bed. Because
the bed leaned against a wall, Mother surmised that Marcell may have hit his head on the
wall while she was sleeping. Mother also informed Ms. Harper that she was the primary
caretaker of Marcell. Marcell entered the custody of DCS on September 14, 2012. He

2
In cases involving minor children, it is this Court‟s policy to redact names sufficient to protect the
children‟s identity.

2
remained in DCS‟s custody as of the date of the hearing in this case on August 14-15,
2014. Marcell stayed in the hospital for approximately a month.

Mother was arrested on charges of aggravated child abuse in February 2013,3 and
in April 2013, the Juvenile Court of Shelby County found Marcell to be dependent and
neglected and the victim of severe abuse. The Juvenile Court found that, on the basis of
the testimony that was presented, Mother was the perpetrator of Marcell‟s injuries.4 In its
order, the Juvenile Court relieved DCS of making reasonable efforts as to Mother in light
of its finding that Marcell had been a victim of severe abuse. Following a rehearing of
the case in September 2013, the Juvenile Court upheld the prior findings that Marcell was
dependent and neglected and the victim of severe abuse.5 Mother subsequently appealed
to the Shelby County Circuit Court, and the matter was later set for a de novo hearing.6

On March 18, 2014, prior to the hearing of Mother‟s de novo appeal, DCS filed a
petition to terminate her parental rights in the Shelby County Circuit Court.7 The petition
alleged that two grounds justified terminating Mother‟s rights. First, the petition asserted
that Mother had abandoned Marcell pursuant to Tennessee Code Annotated § 36-1-
102(1)(A)(iv). Second, the petition alleged that Mother had committed severe child

3
Following her initial arrest, Mother was incarcerated for over two weeks. Although Mother argues in
her brief that all criminal charges against her have now been dismissed, this contention is not supported
by the record transmitted to us on appeal. Rule 14 of the Tennessee Rules of Appellate Procedure governs
requests to consider post-judgment facts in this Court. Pursuant to Rule 14(b), requests to consider post-
judgment facts must be made in a manner compliant with Rule 22 of the Tennessee Rules of Appellate
Procedure. Rule 22 directs movants to file a written motion, which is to be accompanied by a
memorandum of law in support of the motion and an affidavit, if needed. Tenn. R. App. P. 22. In this
case, no motion was ever filed. Although certain documents were attached to Mother‟s appellate brief,
this does not make them available for our consideration. See Carney v. State, No. M2006-01740-CCA-
R3-CO, 2007 WL 3038011, at *4 n.2 (Tenn. Crim. App. Oct. 17, 2007) (noting that “„documents attached
to an appellate brief but not included in the record on appeal cannot be considered by this court as part of
the record‟”) (citations omitted).
4
The Juvenile Court found that Mother committed severe abuse either by direct action or by her inaction
in failing to protect Marcell. The Juvenile Court‟s finding was based, in part, on the evidentiary
deposition of Dr. Karen Lakin. Dr. Lakin testified that Marcell‟s injuries were consistent with non-
accidental trauma, specifically abusive head trauma.
5
The Juvenile Court also upheld the prior ruling that DCS was relieved of making reasonable efforts to
reunify Mother with Marcell.
6
We note that when dependency and neglect cases are appealed to Circuit Court, the Circuit Court “must
try the case de novo by hearing all the witnesses again and by rendering an independent decision based on
the evidence received in the circuit court proceeding.” In re M.J.B., 140 S.W.3d 643, 651 (Tenn. Ct. App.
2004).
7
The petition also sought to terminate the parental rights of Marcell‟s father. Although the father‟s
parental rights were ultimately terminated, he has not appealed.

3
abuse. The petition stated that Marcell had remained continuously in foster care since
September 14, 2012, and averred that a change of caretaker would likely have a negative
effect on his emotional, psychological, and medical condition. It also claimed that his
best interests would be served by forever severing Mother‟s parental rights.

Following the filing of the petition, DCS moved to join the termination hearing
with the hearing of Mother‟s de novo dependency and neglect appeal. The motion stated
that the de novo dependency and neglect appeal was pending in another division of
Circuit Court and asserted that both proceedings should be considered in a joint hearing
due to a common issue of law and fact pertaining to allegations of severe abuse. DCS
explained that a joint hearing would help ensure consistent rulings, avoid unnecessary
delay, and preserve judicial resources. By order dated May 21, 2014, a consent order was
entered transferring the termination of parental rights matter to the division of Circuit
Court where the de novo appeal was pending.

On August 14 and 15, 2014, the Circuit Court held a joint hearing on the
dependency and neglect appeal and termination issues. At the hearing, the Circuit Court
heard testimony from several DCS case workers and Marcell‟s foster mother, and the
medical deposition of Dr. Karen Lakin was read into the record. As we discussed in
Marcell I, Dr. Lakin concluded that Marcell was a victim of a non-accidental traumatic
injury and that Mother had offered no plausible explanation for his injuries. In re
Marcell W., No.W2014-02120-COA-R3-CV, slip op. at 9 (Tenn. Ct. App. July 16, 2015).

On September 29, 2014, the Circuit Court entered an order terminating Mother‟s
parental rights. In its order, the Circuit Court found by clear and convincing evidence
that Mother had committed severe child abuse against Marcell and that she had
abandoned him within the meaning of Tennessee Code Annotated § 36-1-102(1)(A)(iv).
The Circuit Court also found that it was in Marcell‟s best interests that Mother‟s parental
rights be terminated. This timely appeal followed.

II. Issues

In her brief, Mother presents one issue for our review, stated as follows:

1. The Department of Children Services failed to sufficiently prove that it
made reasonable efforts to reunite the Appellant and the minor child where
the Case Manager readily conceded that a bond exists between Mother and
minor child, that Mother has a stable residence, that Mother is visiting
regularly with the minor child, that the Mother has been in compliance with
the permanency plan.

4
 III. Standard of Review

Although parents have a fundamental right to the care, custody, and control of
their children under both our state and federal constitutions, the right is not an absolute
one. In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App. 2007) (citations omitted).
“Well-defined circumstances exist under which a parent‟s rights may be terminated.” In
re Roger T., No. W2014-02184-COA-R3-PT, 2015 WL 1897696, at *6 (Tenn. Ct. App.
Apr. 27, 2015), no perm. app. filed. In Tennessee, such circumstances are defined by
statute. Id. (citation omitted). Pursuant to the Tennessee Code, parties who have
standing to seek the termination of a parent‟s parental rights must prove two things.
First, they must prove at least one of the statutory grounds for termination. In re J.C.D.,
254 S.W.3d at 438 (citing Tenn. Code Ann. § 36-1-113(c)(1)). Second, they must prove
that termination of parental rights is in the child‟s best interests. Id. (citing Tenn. Code
Ann. § 36-1-113(c)(2)). “Because the stakes are so profoundly high, Tenn. Code Ann. §
36-1-113(c)(1) requires persons seeking to terminate a biological parent‟s parental rights
to prove the statutory grounds for termination by clear and convincing evidence.” In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). The clear and convincing
evidence standard also applies to the trial court‟s determination regarding the child‟s best
interests. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code Ann. §
36-1-113(c)). As we have previously observed, the heightened burden of proof under
Tennessee Code Annotated § 36-1-113(c) requires us to adapt our customary standard of
review. In re Audrey S., 182 S.W.3d at 861. “First, we must review the trial court‟s
specific findings of fact de novo in accordance with Tenn. R. App. P. 13(d).” In re
M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). “Second, we must determine
whether the facts, either as found by the trial court or as supported by the preponderance
of the evidence, clearly and convincingly establish the elements required to terminate a
biological parent‟s parental rights.” Id. (citations omitted).

IV. Analysis

In this appeal, Mother presents only one issue for our review. Specifically, she
asserts that DCS failed to sufficiently prove that it made reasonable efforts to reunite her
with Marcell. In light of the recent Tennessee Supreme Court decision in In re Kaliyah
S., 455 S.W.3d 533 (Tenn. 2015), we conclude that Mother‟s assertion of error on this
issue cannot be sustained. In the Kaliyah case, the Tennessee Supreme Court was
confronted with an issue of first impression concerning “whether the State is required to
prove that it made reasonable efforts to reunify the parent with the child as a precondition
to termination.” In re Kaliyah S., 455 S.W.3d at 535. In holding that the State is not
required to prove “reasonable efforts” as a precondition to termination, the Supreme
Court explained as follows:

5
 An action to terminate the parental rights of a biological parent is governed
by Tennessee Code Annotated § 36-1-113. The language of Section 36-1-
113 makes the State‟s efforts to assist the respondent parent one of the
factors to be considered in determining whether termination of the parent‟s
rights is in the child‟s best interest. After reviewing the language of
Section 36-1-113, other pertinent statutes, the legislative history, and
caselaw interpreting Section 36-1-113, we hold that, in a termination
proceeding, the extent of the efforts made by the State is weighed in the
court‟s best-interest analysis, but the State need not prove that it made
reasonable efforts as an essential component of its petition to terminate
parental rights.

Id. Although Mother seems to suggest that the termination of her parental rights cannot
occur absent sufficient proof of the State‟s efforts at reuniting her with her child, the
decision in Kaliyah negates her argument.8

We observe that Mother‟s brief does not challenge any of the grounds upon which
her parental rights were terminated. She has not challenged the trial court‟s finding that
she committed severe child abuse against Marcell, nor has she challenged the trial court‟s
finding related to the statutory ground of abandonment. Rule 27(a)(4) of the Tennessee
Rules of Appellate Procedure provides that the brief of the appellant shall contain, “under
appropriate headings,” “[a] statement of the issues presented for review[.]” Tenn. R.
App. P. 27(a)(4). Because Mother‟s “statement of the issues” section of her brief does
not challenge either of the grounds upon which the trial court terminated her parental
rights, any issues regarding those grounds are waived. See State v. Freeman, 402 S.W.3d
643, 653 (Tenn. Ct. App. 2012) (citation omitted).

Sufficient proof of a statutory ground for termination, however, does not by itself
justify the termination of parent‟s parental rights. “Because not all parental conduct is
irredeemable, Tennessee‟s termination of parental rights statutes recognize the possibility
that terminating an unfit parent‟s parental rights is not always in the child‟s best interest.”
In re Jacobe M.J., 434 S.W.3d 565, 573 (Tenn. Ct. App. 2013) (citation omitted), perm.
app. denied (Tenn. Mar. 5, 2014). “When at least one ground for termination of parental
rights has been established, the petitioner must then prove, by clear and convincing
evidence, that termination of the parent‟s rights is in the child‟s best interest.” Id. at 572
(citing White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004)).

As with the predicate statutory grounds that supported the termination of her
parental rights, Mother‟s brief fails to raise the trial court‟s findings regarding Marcell‟s
8
Moreover, we note that, in proceedings before the Shelby County Juvenile Court in the dependency and
neglect litigation, DCS was relieved of making reasonable efforts as to Mother in light of the finding that
Marcell had been a victim of severe abuse.

6
best interests as an issue for our review. In the argument section of her brief, Mother
makes a passing reference that “the combined weight of the . . . facts do not support the
trial court‟s ultimate conclusion[,]” but nowhere is a “best interest” argument specifically
developed in a manner that complies with the dictates of Rule 27(a)(7) of the Tennessee
Rules of Appellate Procedure. See Tenn. R. App. P. 27(a)(7) (setting out the specific
requirements for the argument section of an appellant‟s brief). As we previously stated,
failure to raise an issue in an appellant‟s “statement of the issues” section is sufficient by
itself to waive an issue for review. Childress v. Union Realty Co., Ltd., 97 S.W.3d 573,
578 (Tenn. Ct. App. 2002) (citation omitted).

Although Mother‟s brief waives any issue regarding the trial court‟s best interests
analysis on account of her failure to comply with Rules 27(a)(4) and 27(a)(7) of the
Tennessee Rules of Appellate Procedure, we nonetheless exercise our discretion to
review the trial court‟s findings concerning Marcell‟s best interests due to the gravity of
the consequences involved in the termination of Mother‟s parental rights. 9 See In re
Justin K., No. M2012-01779-COA-R3-PT, 2013 WL 1282009, at *8 n.6 (Tenn. Ct. App.
Mar. 27, 2013) (exercising discretion to address the minor child‟s “best interests” on
appeal notwithstanding a waiver by the appellant on the issue). When conducting a best
interests analysis, conflicts between the interests of the parent and child are to be resolved
in “favor of the rights and best interest of the child.” In re Jacobe M.J., 434 S.W.3d at
573 (citing Tenn. Code Ann. § 36-1-101(d)). Indeed, the best interests analysis “must be
viewed from the child‟s, rather than the parent‟s, perspective.” White v. Moody, 171
S.W.3d 187, 194 (Tenn. Ct. App. 2004) (citations omitted). In Tennessee, the Legislature
has codified a list of nine, non-exclusive factors that trial courts are to consider when
determining the bests interests of a child in a termination of parental rights proceeding.
These factors are as follows:

(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child‟s
best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;

9
Additionally, although we have concluded that Mother‟s “reasonable efforts” issue, as presented, is
misplaced in light of the Tennessee Supreme Court‟s decision in Kaliyah, we note that the extent of the
State‟s efforts to assist a parent are weighed in the best-interest analysis. In re Kaliyah S., 455 S.W.3d at
535. Because Mother specifically raised the reasonableness of DCS‟s efforts in this case, we will
consider her grievance in the context of our best interest analysis.

7
 (3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;

(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to
have on the child‟s emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;

(7) Whether the physical environment of the parent‟s or guardian‟s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;

(8) Whether the parent‟s or guardian‟s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or

(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.

Tenn. Code Ann. § 36-1-113(i) (2014). “Ascertaining a child‟s best interests does not
call for a rote examination” of these factors, and the relevancy and weight to be given to
each will depend on the unique facts of the case. In re Audrey S., 182 S.W.3d at 878.
“[D]epending upon the circumstances of a particular child and a particular parent, the
consideration of one factor may very well dictate the outcome of the analysis.” Id. (citing
Moody, 171 S.W.3d at 194).

In this case, we cannot conclude that the trial court erred in finding by clear and
convincing evidence that termination of Mother‟s parental rights is in Marcell‟s best
interests. Although Mother‟s brief generally questions the sufficiency of DCS‟ efforts in
reuniting her with Marcell, we note that the Juvenile Court relieved DCS of making
reasonable efforts in its adjudication of the dependency and neglect litigation.
Unfortunately, this is a case where Marcell has been subjected to severe abuse, see Tenn.
Code Ann. § 36-1-113(i)(6), and the testimony before the trial court established that he

8
continues to suffer from a variety of medical ailments, including cerebral palsy. His
medical conditions require frequent doctor visits, but his foster mother testified at trial
that Mother had not been to one of his medical appointments in more than a year.
Moreover, the trial court found that “a change of caretakers and physical environment is
likely to have a traumatic effect on [Marcell‟s] emotional, psychological, and medical
condition[.]” See Tenn. Code Ann. § 36-1-113(i)(5). Based on the record transmitted to
us, we are compelled to affirm the trial court‟s termination of Mother‟s parental rights.

V. Conclusion

The order of the Circuit Court terminating Mother‟s parental rights is hereby
affirmed. Costs of this appeal are assessed against Mother. Because Mother is
proceeding in forma pauperis in this appeal, execution may issue for costs if necessary.

_________________________________
ARNOLD B. GOLDIN, JUDGE

9