In re: M. D.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 2, 2016

IN RE: M. D.

Appeal from the Circuit Court for Jackson County
No. 13CV25 Clara W. Byrd, Judge

No. M2015-01023-COA-R3-JV-Filed September 30, 2016

This appeal arises from a finding of dependency and neglect. The Tennessee Department
of Children’s Services (“DCS”) filed a petition alleging that M. D. (“the Child”) was
dependent and neglected based upon alleged sexual abuse by her father, D. D. (“Father”).
The Child’s mother, S. D. (“Mother”), filed a cross-petition to intervene, and she sides
with DCS on appeal. After a trial, the Circuit Court for Jackson County (“the Trial
Court”) found the Child to be both dependent and neglected and a victim of severe abuse
by Father. Father appeals to this Court. We find and hold that the evidence does not
preponderate against the findings of the Trial Court, and the evidence rises to the
standard of clear and convincing to prove the Child is dependent and neglected, as well as
a victim of severe abuse. We further find no reversible error in the Trial Court’s
considering Father’s drug use and troublesome courtroom behavior in assessing his
credibility. We affirm the judgment of the Trial Court.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and BRANDON O. GIBSON, JJ., joined.

Cindy Howell Morgan, Sparta, Tennessee, for the appellant, D. D.

Mark E. Tribble, Cookeville, Tennessee, for the appellee, S. D.

Herbert H. Slatery, III, Attorney General and Reporter, and, Martha A. Campbell, Deputy
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
 OPINION

Background

The Child was born to Mother and Father in 2008. Mother and Father
divorced in 2011, and their parenting plan provided that they would each have the Child
for two days at a time. The arrangement briefly went well. However, in 2011, DCS
investigated Father based upon allegations that he exposed the Child to drugs. Mother
suspected that Father was abusing the Child. In 2012, Annette Gallardo (“Gallardo”), a
licensed professional counselor, assessed the Child. The Child at that time made no
disclosures of abuse. That November, DCS received a referral regarding Father’s alleged
sexual abuse of the Child. The Child disclosed that Father had touched her private area
in inappropriate ways. The Child’s step-grandmother made the referral. After this
referral, the Child underwent a physical, which was inconclusive as to sexual abuse. A
DCS investigator, Kim Pierce, arranged for the Child to undergo a forensic interview.
Jennifer Wilkerson, Executive Director of the Upper Cumberland Child Advocacy
Center, conducted the forensic interview, which was recorded on video tape. For his part,
Father underwent a psychosexual evaluation, which deemed him to be at low risk of
sexual offending. This evaluation, however, consisted largely of questioning requiring
honest responses from Father. DCS filed a petition in November 2012 alleging that the
Child was dependent and neglected, as well as a victim of severe abuse by Father.

The Juvenile Court for Jackson County found the Child dependent and
neglected in June 2013. Father appealed to the Trial Court for a de novo trial. The Trial
Court conducted the trial over the course of one day in July 2014, and two days in
January 2015.

Gallardo, the professional counselor who worked with the Child, testified
by deposition that on November 30, 2012, the Child went further into detail about the
sexual abuse. However, we do not deem it necessary to describe those details for
purposes of this opinion.

The Child’s step-grandmother testified that the Child stated to her that
Father touched her in various inappropriate ways. The step-grandmother knew the Child
made this statement on December 3, 2012, because it was her step-daughter’s birthday.
The grandmother acknowledged not liking Father because, according to her, she knew
“he sold drugs.”

Melissa Spaulding (“Spaulding”) testified as an expert in psychotherapy
with children with trauma. Spaulding had been seeing the Child since January 2014.

-2-
Spaulding testified that the Child asserted that Father performed various inappropriate
sexual acts with the Child.

Father testified. Father takes significant prescription drug medication
related to serious problems with his neck and shoulder which had required surgery.
Father takes, among other things, 15 milligrams of Oxycodone four times a day, one
milligram of Xanax four times a day, and Lyrica three times a day for fibromyalgia.
Father had been receiving social security disability since 2012. Father adamantly denied
ever sexual abusing the Child.

In March 2015, the Trial Court entered its final judgment finding and
holding the Child to be dependent and neglected as well as a victim of severe abuse by
Father. The Trial Court stated in relevant part:

The Court has heard this case over the course of three days, July 14,
2014, January 27, 2015 and January 29, 2015. Prior the July 14, 2014
hearing [sic], and at the request of all counsel and with the assistance of all
counsel, the Court viewed the DVD that contained the forensic interview of
[the Child]. That interview was done on November 7, 2012 by forensic
interviewer Jennifer Wilkerson at the Child Advocacy Center. In that
interview, the Court observed the child, [the Child], who was four (4) years
old. The Court did not personally see the child except for the DVD. . . The
child used age-appropriate descriptions of body parts. . . [She described
how her father touched her private area in inappropriate ways, and she also
touched his.] 1 At one point towards the end she said, “Don’t say a word to
my daddy. He’ll be mad.” The child also disclosed that someone named
[C.] or Uncle [C.] had touched her. The Court finds that the child was
being truthful and that her further disclosures that were made after the
forensic interview were also truthful and do not mean that the child was
being deceitful in her forensic interview.
The Court then heard testimony from Melissa Spaulding, the child’s
counselor, who saw the child seventeen (17) times from January 14, 2014
to the present. The Court finds that Ms. Spaulding was credible in her
testimony about [the Child] specifically and about children who have been
abused generally. Ms. Spaulding testified about [the Child’s] coping
mechanisms and the therapy that she was doing with [the Child] to help her
cope and teach her to calm down from her fears.

1
We deem it unnecessary for purposes of this opinion to recount verbatim the Trial Court’s graphic
findings as to the disclosed abuse, and this sentence is our summary of those findings.
-3-
 The Court reviewed the transcript of the deposition of Annette
Gallardo, another counselor whom the child saw prior to seeing Melissa
Spaulding. The child opened up to Ms. Gallardo about her abuse including
that her father had her perform oral sex on him and it choked her.
The Court also heard from the CPS case manager, Kim Pierce. Ms.
Pierce had been in both homes and most of the referrals to DCS arose out
of the fact that [Father] takes prescription medication.
The Court finds that [Father] is on prescription drugs, that he
regularly takes oxycodone and xanax, and that at the time of the sexual
abuse referral, he was also taking morphine. The Court is convinced that
[Father] is addicted to prescription drugs. His behavior on January 27,
2015 was very bizarre. The Court was concerned that he was not going to
be able to get home and suggested that he have someone else drive him
home. [Father] insisted that he was sober, but he was a risk to himself and
others. He was stumbling trying to get to the witness stand. On that day he
testified that he did not have any drugs and that was why he was acting that
way. If [Father] cannot drive after taking his drugs, and if his conduct on
January 27, 2015 is the way that he acts when he is sober then he is in bad
shape.
The Court finds that, as a result of all of the medications that
[Father] has had, he does not remember significant events, i.e., when he got
divorced, when he had a surgery, when he had the medication, what year
the DCS case began, what year he separated from his wife, and what year
his Social Security Disability was approved. He has no independent
recollection of significant factors in his life and has to depend upon others
to tell him where he was on a certain date at a certain time. Based upon his
testimony, [Father] cannot be relied upon to self-report anything.
Jerri Cross performed a psychosexual evaluation at the request of
Judge Gipson, Judge of the Juvenile Court of Jackson County, Tennessee.
The Court cannot find that the evaluation was of any value to this Court
because most of the areas of the evaluation depended upon the credibility of
the person being evaluated. [Father], according to his own testimony, has
no recollection. While [Father] has denied the allegations made by the
child, the truth is that he does not know. He has had multiple surgeries; he
has been on oxycodone, xanax, and morphine. He does not seem to have
any memory of what happens from one day to the next when he is on that
medication.
The Court finds by clear and convincing evidence that this four-
year-old could not make up these allegations. She has been consistent in
the fact that her father has inappropriately touched her. At times she has

-4-
 come out with additional facts, but that does not mean that the child was
not being truthful.
The Court finds by clear and convincing evidence that [Father] has a
drug addiction problem. The Court finds by clear and convincing evidence
pursuant to TCA 37-1-129 (a) (2), that this child is a victim of severe abuse,
as defined in TCA 37-1-102(21); that it was perpetrated by [Father], and
that pursuant to TCA 37-1-130 (d) and TCA 37-1-167, the Court shall not
return the child, who is the victim of severe child abuse, to the perpetrator
of that abuse until the Court receives clear and convincing evidence that the
child will be safe from further brutality or abuse and that the threat to the
child’s safety no longer exists.
The Court further finds that it is in the best interest of said child and
the public as follows, and
It is therefore ORDERED for disposition that the mother shall retain
temporary legal custody along with the authority to consent fully to all the
medical, surgical, hospital, institutional care, counseling, educational
enrollment, and all other matters pending further orders of the Juvenile
Court.
It is FURTHER ORDERED:
1. DCS shall not be required to make any further Reasonable Efforts
pursuant to Tenn. Code Ann. § 37-1-166(g)(4)(A) due to the parent,
[Father], subjecting the child to aggravated circumstances as defined by
Tenn. Code Ann. § 36-1-102.
2. There shall be no visitation between the child and [Father] until such
time as the Juvenile Court is presented with clear and convincing evidence
that this child will be safe from any further abuse or drug-exposed conduct.

Father timely appealed to this Court.

Discussion

Although not stated exactly as such, Father raises the following issues on
appeal: 1) whether the Trial Court erred in finding that clear and convincing evidence
established that the Child was dependent and neglected, as well as a victim of severe
abuse; and, 2) whether the Trial Court erred in considering Father’s use of prescription
drugs in reaching its finding as to severe abuse.

This Court has outlined the standard of review in dependency and neglect
and cases of severe child abuse as follows:

-5-
 A child who is suffering from abuse is a dependent and neglected
child. See Tenn. Code Ann. § 37-1-102(12)(G). A determination that a
child is dependent and neglected must be supported by clear and
convincing evidence. See Tenn. Code Ann. § 37-1-129(a)(1) & (c). Severe
child abuse in a dependency and neglect proceeding must also be
established by clear and convincing evidence. In re S.J., 387 S.W.3d 576,
591 (Tenn. Ct. App. 2012).

The “clear and convincing evidence standard” is more exacting than
the “preponderance of the evidence” standard, although it does not demand
the certainty required by the “beyond a reasonable doubt” standard. In re
C.W. W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000). The clear and
convincing evidence standard defies precise definition. Majors v. Smith,
776 S.W.2d 538, 540 (Tenn. Ct. App. 1989). Evidence satisfying this high
standard produces a firm belief or conviction regarding the truth of facts
sought to be established. In re C.W.W., 37 S.W.3d at 474. Clear and
convincing evidence eliminates any serious or substantial doubt concerning
the correctness of the conclusions to be drawn from the evidence. Hodges
v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992).

Our review of the trial court’s determinations on questions of fact is
de novo with a presumption of correctness, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d). Whether a child has
been proven dependent and neglected by clear and convincing evidence is a
question of law which we review de novo without a presumption of
correctness. In re H.L.F., 297 S.W.3d 223, 233 (Tenn. Ct. App. 2009). To
the extent the trial court’s determinations rest upon an assessment of the
credibility of witnesses, the determinations will not be overturned absent
clear and convincing evidence to the contrary. Wells v. Tennessee Bd. of
Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

In re: Kaitlynne D., No. M2013-00546-COA-R3-JV, 2014 WL 2168515, at *1-2 (Tenn.
Ct. App. May 21, 2014), no appl. perm. appeal filed.

The first issue we address is whether the Trial Court erred in finding that
clear and convincing evidence established that the Child was dependent and neglected, as
well as a victim of severe abuse by Father. Father’s argument may be consolidated as
follows: (1) that the individuals reporting the disclosures are biased or otherwise
predisposed to believe the allegations against Father and, therefore, not credible; (2) that
the Child’s accounts of sexual abuse were inconsistent over a long period of time; and (3)

-6-
that witnesses testified that the Child behaved normally around Father and, indeed,
seemed to enjoy being around both parents.

The evidence in the record on appeal is that the Child made disclosures of
sexual abuse by Father from 2012 onward. Although the exact vocabulary and level of
detail changed, the basic factual allegations of sexual abuse persisted. Moreover, the
Child’s later descriptions tended to become more detailed, rather than tending to
contradict her earlier descriptions. Any inconsistency in the Child’s disclosures of sexual
abuse was in her exact relating of what happened, not whether actions amounting to
sexual abuse occurred at all. Father notes the Child once made manifestly false
allegations that Father broke into their house, and this false allegation undermines the
credibility of the Child’s other allegations against Father. However, we, as did the Trial
Court, do not believe that a child’s making a false allegation in one separate instance
necessarily serves to negate a body of consistent allegations of sexual abuse.

As to the alleged bias of those adults relating the Child’s behaviors and
disclosures, Father points to no evidence in the record that the Child had been coached in
any way. Father, for instance, cites the step-grandmother’s animosity toward Father.
This animosity is not irrelevant as such, but neither is it tantamount to the Child’s being
coached.

Finally, Father points to the Child’s behavior, which he characterizes as
normal with respect to him. While the record contains some testimony that the Child was
not afraid of Father or other men, it also contains evidence to the contrary, notably from
the step-grandmother.

The Trial Court is the arbiter of witness credibility of those who testify live
before it. As our Supreme Court has instructed:

When credibility and weight to be given testimony are involved,
considerable deference must be afforded to the trial court when the trial
judge had the opportunity to observe the witnesses’ demeanor and to hear
in-court testimony. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.
1997) (quoting Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)).
Because trial courts are able to observe the witnesses, assess their
demeanor, and evaluate other indicators of credibility, an assessment of
credibility will not be overturned on appeal absent clear and convincing
evidence to the contrary. Wells v. Bd. of Regents, 9 S.W.3d 779, 783
(Tenn. 1999).

-7-
Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d 352, 360 (Tenn.
2011).

The Trial Court made specific credibility determinations as to the witnesses
that testified live. We find no clear and convincing evidence contrary to the Trial Court’s
credibility determinations as to those witnesses, including Father. We find and hold that
the evidence does not preponderate against the findings of the Trial Court, quoted above,
and this evidence taken together arises to the standard of clear and convincing so as to
establish, as found by the Trial Court, that the Child is dependent and neglected, as well
as a victim of severe abuse by Father.

The next and final issue we address is whether the Trial Court erred in
considering Father’s use of prescription drugs in reaching its finding as to severe abuse.
The Trial Court, in its final judgment as quoted above, did consider Father’s use of
prescription drugs when declining to credit his testimony. If the Trial Court simply had
relied upon Father’s prescription drug use to establish that he had sexually abused the
Child, then, of course, that would be wildly improper. However, the Trial Court did not
do that. Rather, the Trial Court instead rendered a credibility determination based upon
Father’s in-court demeanor and the effect of Father’s drug use on him, including his
memory. The Supreme Court of Rhode Island discussed the impact of witness drug use,
persuasively, as follows:

Generally, “[e]vidence of intoxication is admissible for the purpose
of attacking the credibility of a witness and to test his competency, his
ability to perceive and remember and to communicate the subject matter of
his testimony.” State v. Ahmadjian, 438 A.2d 1070, 1088 (R.I. 1981). A
witness’s intoxication while testifying strikes at the very core of his or her
credibility and the reliability of the testimony. Alcohol and drugs may
directly implicate the person’s ability to recall the events to which he or she
testifies. See Wilson v. United States, 232 U.S. 563, 567-68, 34 S.Ct. 347,
58 L.Ed. 728 (1914); 81 Am.Jur.2d Witnesses § 872 at 717 (1992) (noting
that a present lack of sobriety “tends to discredit [a witness’s] testimony
because it involves a diminution of his trustworthiness in respect to his
present ability to recollect and communicate”). Beyond that, intoxication at
the time of testifying could also detract from a witness’s ability to
appreciate his or her sworn obligation to tell the truth. Thus, current
intoxication is a potent, and relevant, topic for cross-examination. See
United States v. Banks, 520 F.2d 627, 631 (7th Cir. 1975). Drug addiction
and treatment in general, however, are improper topics for cross-
examination “without also showing how that specific information would

-8-
 affect [the witness’s] credibility.” Commonwealth v. Adrey, 376 Mass. 747,
383 N.E.2d 1110, 1112 (1978).

State v. D’Alessio, 848 A.2d 1118, 1124-25 (R.I. 2004).

Most critically, it was the Trial Court’s prerogative to determine Father’s
credibility. This power is not limited to taking into account only witness drug use while
testifying, but also may include other relevant factors such as a witness being unable to
recall events that occurred while the witness was under the influence of those drugs.
When hearing and perceiving the witness testify, trial courts in Tennessee are afforded
considerable deference as to their witness credibility determinations. Father has pointed
to no evidence that is clear and convincing that would serve to overturn the Trial Court’s
determination that he lacked credibility. We affirm the judgment of the Trial Court in its
entirety.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to
the Trial Court for collection of the costs below. The costs on appeal are assessed against
the Appellant, D. D., and his surety, if any.

____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE

-9-