09/26/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 31, 2018 Session
IN RE C.T. ET AL.
Appeal from the Circuit Court for Union County
No. 3477 John D. McAfee, Judge
No. E2017-02148-COA-R3-JV
J.S. (father) appeals the trial court’s adjudication that his children C.T. and L.T. were
dependent and neglected and severely abused in the care of father and A.T. (mother).
Mother, who did not appeal, testified, among other things, that father bought her illegal
drugs while she was pregnant, and that she and father abused drugs and alcohol during
her pregnancy. Father denied mother’s allegations. The twin children were born
prematurely and tested positive for opana, an opioid, and oxycodone. The trial court
expressly credited mother’s testimony and discredited father’s. On appeal, father bases
his assertion of error solely on his argument that the trial court incorrectly assessed the
credibility of the witnesses, and that the trial court should have believed him instead of
mother. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
Brandon T. Kibert, Tazewell, Tennessee, for the appellant, J.S.
Herbert H. Slatery III, Attorney General and Reporter, and W. Derek Green, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Chidren’s Services.
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OPINION
I.
Mother discovered that she was pregnant in January of 2016. At the time of her
discovery, she was living with father and not with her husband. DNA testing later
confirmed that he is the biological father of the children. Father testified that he also
learned of the pregnancy in January 2016. Mother admitted that she was addicted to
opioid pain medication and alcohol, and had been for years. She abused these substances
over the course of her pregnancy. At the dependency and neglect and severe child abuse
hearing, mother testified that she and father abused drugs and alcohol together numerous
times while she was pregnant. She said that father provided her illegal drugs during that
time. On one occasion, father purposefully drove the vehicle she was riding in into a
ditch after he had consumed around twelve beers. Mother testified he did that “trying to
scare me.”
The children were born prematurely on August 1, 2016. They spent their first 23
days in the hospital’s neonatal intensive care unit. As noted, they tested positive for
opana and oxycodone shortly after birth.
On January 19, 2017, Department of Children’s Services petitioned the Union
County Juvenile Court to declare the children dependent and neglected and victims of
severe abuse by mother and father. After a hearing at which both parents testified, the
juvenile court granted the petition. At the end of the hearing, the juvenile court
specifically found mother’s testimony to be credible and true. Father appealed the
decision to the trial court. Mother did not. At the trial court hearing, mother did not
dispute that the children were dependent and neglected, and had been severely abused in
her care by her drug use during pregnancy.
After hearing both parents’ testimony, the trial court entered an order finding, in
pertinent part, as follows:
The Court finds the mother’s testimony to be more credible to
the father, and the Court gives more weight to the mother’s
testimony tha[n] the father’s testimony, and the Court finds
the mother’s version of events [is] true, and not the father’s
version of events.
* * *
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The parents both abused drugs together on multiple occasions
while the mother was pregnant with the children, knowing the
mother was pregnant, and knowing that the prenatal drug
abuse was likely to cause a serious bodily injury to the child.
* * *
The mother testified in March of 2016 the parents snorted
20mg o[f] Opana together.
Later, the parents bought two pills in Clinton and crushed
them and cooked them. They both injected them
intravenously.
Later, the parents took Hydrocodone by mouth. They broke
them into two pieces and shared them.
Later, about a month prior to the children’s birth, the father
took the mother to a drug dealer. They picked the dealer up
and drove him to another dealer and purchased a 40mg
Opana. They dropped the first dealer back off and went back
to the mother’s house and crushed and snorted the pill
together.
The parents both testified they drank alcohol together on
multiple occasions during the pregnancy.
The mother testified that on one occasion during the
pregnancy, the father drank about a twelve pack of Natural
Ice beer, and then drove with her in the car with him.
The father testified that, during the pregnancy, he witnessed
the mother impaired on drugs on a regular basis. He testified
that she would be so impaired on a regular basis that she was
“slumped over” and having trouble holding her head up.
Based on these findings, the trial court concluded,
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There is clear and convincing evidence that the children were
dependent and neglected by the father, under TCA 37-1-
102(b)(13)(G), and that the children are victims of severe
abuse by the father, under TCA 37-1-102(b)(22)(A), based on
the father obtaining drugs for the mother without prescription
during her pregnancy with the children; the father abusing
drugs without prescription with the mother during pregnancy;
and the father knowing that such conduct was likely to cause
serious bodily injury to the children.
Father timely filed a notice of appeal.
II.
Father raises the issue of whether the trial court erred in determining that DCS
proved by clear and convincing evidence that the children were dependent and neglected,
and severely abused, under father’s care.
III.
We review de novo the trial court’s findings of fact in the record with a
presumption of correctness, and we will not overturn those factual findings unless the
evidence preponderates against them. Tenn. R. App. P. 13(d); Armbrister v. Armbrister,
414 S.W.3d 685, 692 (Tenn. 2013). We review a trial court’s conclusions of law under a
de novo standard with no presumption of correctness attaching to the trial court’s legal
conclusions. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
As we recently observed in In re A.L.H., No. M2016-01574-COA-R3-CV, 2017
WL 3822901, at *2 (Tenn. Ct. App., filed Aug. 31, 2017),
Severe child abuse in a dependency and neglect proceeding
must . . . be established by clear and convincing evidence.
Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is
highly probable and eliminates any serious or substantial
doubt about the correctness of the conclusions drawn from the
evidence. The evidence should produce a firm belief of
conviction as to the truth of the allegations sought to be
established. In contrast to the preponderance of the evidence
standard, clear and convincing evidence should demonstrate
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that the truth of the facts asserted is highly probable as
opposed to merely more probable than not.
(Quoting In re S.J., 387 S.W.3d 576, 587 (Tenn. Ct. App. 2012) (internal quotation
marks omitted)).
IV.
Tenn. Code Ann. § 37-1-102(b)(22) defines “severe child abuse” to include the
following:
(A)(i) The knowing exposure of a child to or the knowing
failure to protect a child from abuse or neglect that is likely to
cause serious bodily injury or death and the knowing use of
force on a child that is likely to cause serious bodily injury or
death[.]
In this appeal, father does not argue that the trial court’s findings, if upheld, would not
establish severe child abuse under the statute. His position is based solely on the
argument that the trial court’s assessment of credibility between him and mother was
erroneous.
As father correctly states in his brief, mother testified that he “supplied her with
drugs while she was pregnant, abused drugs with her while she was pregnant, and
supplied her with alcoholic beverages while she was pregnant.” Mother’s testimony can
be generally summarized by the following question by the trial court, and her answer:
THE COURT: And, I take it, from your testimony, that the
moment that you discovered that you’re pregnant, leading up
to the pregnancy, it became a known thing that you all would
use drugs together, [father] knew you were addicted and that
you all continuously used drugs, prescription medications,
that you bought from drug dealers or that he would buy from
drug dealers throughout your pregnancy; is that correct?
Mother: Yeah.
Mother also described an incident when father was driving with her as a passenger,
testifying as follows:
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THE COURT: So it’s your testimony that shortly after that
first initial euphoria, after that [father] could care less whether
you were pregnant or not, is that what you’re saying?
Mother: Yeah.
THE COURT: And you say that because he showed no
interest?
Mother: Well, because he would be drinking and talked to me
like crap and ‒ well, we both would be drinking actually and
he would be driving us to the store or whatever and he would
get mad about something and drive his car off in the ditch to
try to scare me, just put me out of the car.
* * *
Q. You testified earlier about him drinking and driving and
driving the car off into a ditch to try to scare you?
A. Yeah.
Q. Did that happen during the pregnancy?
A. I was pregnant, yes.
Q. Were you all intoxicated during that time?
A. We were drinking, yeah.
Q. How much did you drink?
A. I had had just a few beers.
Q. How much did he drink?
A. About a 12-pack I would say.
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Q. You saw him, witnessed him drink about a 12-pack of
beer?
A. Yeah.
Q. And then drive the car with you in it?
A. Yeah.
Q. While you’re pregnant?
A. Yeah.
Q. Then an argument ensued, I assume, between the two of
you?
A. A little bit.
Q. Your testimony was that he drove the car off into a ditch to
try to scare you?
A. Yeah.
Mother stated that father had abused methamphetamines for around “fifteen years or so.”
Father denied supplying drugs to mother or abusing them with her during the
pregnancy, except admitting that they drank alcoholic beverages on occasion. He
testified that he had been in the Army briefly, and was discharged due to testing positive
for cocaine and incurring a foot injury. Father denied abusing alcohol or drugs at the
time of the hearing, but also said that his “drug of choice” was “methamphetamine.”
As already stated, father’s appeal is based on his argument that the trial court erred
in finding mother’s testimony to be more credible than his, and concluding that “mother’s
version of events [is] true, and not the father’s version of events.” Father characterizes
mother’s testimony as “bizarre,” “contradictory,” and “illogical.” As Tennessee appellate
courts have stated myriad times, “[q]uestions of credibility of the witnesses, the weight
and value of the evidence, and resolution of conflicts in the evidence are matters
entrusted to the trial judge as the trier of fact.” State v. Stanfield, No. W2015-02503-SC-
R11-CD, 2018 WL 3762174, at *4 (Tenn., filed Aug. 7, 2018) (quoting State v. Hawkins,
519 S.W.3d 1, 32 (Tenn. 2017)). “The trial court’s determinations regarding witness
credibility are entitled to great weight on appeal and shall not be disturbed absent clear
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and convincing evidence to the contrary.” Gibson v. Bikas, No. E2017-00883-COA-R3-
CV, 2018 WL 1124507, at *5 (Tenn. Ct. App., filed Feb. 28, 2018). The reasons for this
guiding principle are equally well-established. The trial court is able to perceive and
assess the facial expressions, body language, and tone of voice of the witness, in addition
to the words spoken. By stark contrast, the appellate court is presented with printed
words on a page. Consequently, “[w]e defer to the trial court’s determinations of witness
credibility because the trial judge could observe the witnesses’ demeanor and hear in-
court testimony.” Coleman v. Olson, 551 S.W.3d 686, 694 (Tenn. 2018).
Father’s argument that mother’s testimony was “illogical” is illustrated by this
question, asked in his brief: “why would [father] give [mother] money to purchase drugs,
abuse the drugs with her, and later get mad at her for abusing drugs?” The fact that
mother testified that father behaved in an irrational way does not necessarily render her
testimony irrational. The trial court clearly did not determine it to be such. There is no
clear and convincing evidence in the record contrary to the trial court’s assessment of
credibility.
V.
The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, J.S. The case is remanded to the trial court for collection of costs assessed
below and enforcement of the trial court’s judgment.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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