In Re Nehemiah H.

07/08/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 1, 2020

IN RE NEHEMIAH H. ET AL.

Appeal from the Circuit Court for Fentress County
Nos. 2017-CV-79, 2017-CV-80 Elizabeth C. Asbury, Chancellor
___________________________________

No. M2019-01167-COA-R3-JV
___________________________________

This dependency and neglect action focuses on ten siblings: Josiah, Nehemiah, Jonathan,
Hadasah, Nathaniel, Noah, Hope, Malachi, Obadiah, and Grace (“the Children”), whose
ages ranged from eighteen years to one year at the time of trial.1 All of the Children were
born during the marriage of Amy H. (“Mother”) and Timothy H. (“Father”). The
Children were taken into the custody of the Department of Children’s Services (“DCS”)
based on allegations of abuse and neglect by the parents. The Fentress County Juvenile
Court (“juvenile court”) determined that the Children were dependent and neglected, and
the parents appealed that ruling to the Fentress County Circuit Court (“trial court”).
Following a de novo trial, the trial court also determined that the Children were
dependent and neglected and that the parents had committed severe child abuse. Both
Mother and Father have appealed. Discerning no reversible error, we affirm.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and KENNY W. ARMSTRONG, JJ., joined.

Amy R. McLaughlin, Oak Ridge, Tennessee, for the appellant, Amy H.

Laurie A. Seber, Cookeville, Tennessee, for the appellant, Timothy H.

Herbert H. Slatery, III, Attorney General and Reporter, and Amber L. Seymour, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.

1
Although Josiah had attained the age of eighteen years by the time of the hearing in the trial court, he
was still attending high school. The trial court included Josiah in its findings concerning the abuse of the
Children.
 OPINION

I. Factual and Procedural Background

In this dependency and neglect action, the Children were taken into custody on
June 14, 2017, following an order issued by the juvenile court, stating, in pertinent part:

This cause came on to be heard on the 14th day of June, 2017 before
the Honorable Todd Burnett, Judge of the Juvenile Court of Fentress
County, Tennessee, for hearing of an Ex Parte Order of Protection between
[Mother] and [Father] and an Ex Parte Emergency Protective Custody
Order and Restraining Order regarding the minor child Josiah [].

Upon the Court’s own motion, based upon the proof presented at
prior hearings between these parties which occurred on May 3rd, 2017 and
May 11th, 2017, statements made by the oldest child Josiah [], and the
written statements of [Mother] indicating that she wishes to dismiss the
pending Order of Protection between the parties, and the entire record, from
all of which the Court finds by clear and convincing evidence that the
above-named children are dependent and neglected.

The Court further finds that it [is] contrary to the children’s welfare
to remain in the care, custody, or control of their parents . . . ; that there is
no less drastic alternative to removal; that reasonable efforts were made to
prevent the children’s removal from the home; or because of the emergency
natures of the children’s conditions or other circumstances, the lack of
preventative measures was reasonable; and it is not in the children’s best
interest to prevent their removal . . . .2

According to her subsequent trial testimony, Mother had left Fentress County with
the Children in May 2017 and was residing in a domestic violence shelter in Davidson
County. Mother also stated that she wrote a letter seeking dismissal of the order of
protection against Father because she was no longer residing in Fentress County. The
trial testimony of the DCS case manager established that she had been unable to locate
Mother or the Children for weeks prior to the June 14, 2017 hearing. Therefore, in its

2
Although Mother’s petition seeking an order of protection does not appear in the appellate record,
Mother acknowledged the filing of the petition during her testimony at a hearing conducted on October
24, 2018, and she further verified the petition’s contents and stated that her abuse allegations were
truthful. None of the parties have disputed that such petition was filed. Furthermore, although the
parties’ appellate briefs state that Mother’s petition for an order of protection was filed in the Fentress
County General Sessions Court, that court also exercises juvenile court jurisdiction in Fentress County.
See Tenn. Code Ann. § 37-1-203.
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June 14, 2017 order, the juvenile court directed that anyone with knowledge of the
Children’s whereabouts should disclose that information to DCS.

Following the Children’s removal, DCS filed a petition seeking to have the
Children declared dependent and neglected and seeking an award of emergency
temporary legal custody on August 8, 2017. In this petition, DCS alleged that it had
received a referral regarding the Children on April 7, 2017, for purported domestic
violence and physical abuse in the home, as well as mental health concerns, inappropriate
living conditions, and a lack of appropriate supervision. DCS reported that there were
also concerns of educational neglect regarding Hadasah. DCS averred that when the case
manager spoke to Josiah at school, Josiah related that he was living with the maternal
grandparents because his parents and all of his siblings were residing in a two-bedroom
mobile home. Josiah also purportedly related that Mother had suffered a “breakdown”
and had walked to his school to tell him that she was going to die. Josiah further
explained that Father was violent and controlling, that he was physically abusive to
certain of the Children, and that he had even locked them in closets. Josiah indicated that
he did not feel safe staying at home with Father.

According to DCS’s petition, Mother admitted to DCS that she had suffered a
mental health breakdown that resulted in her seeking medical attention at a hospital. She
also allegedly admitted that Father was “loud” and had angry outbursts. DCS
additionally asserted in the petition that after filing for an order of protection, Mother
testified that Father was physically abusive to the Children and her.

The juvenile court entered a protective custody order on August 8, 2017, and
subsequently entered an adjudicatory hearing order on October 18, 2017, finding that
clear and convincing evidence existed that the Children were dependent and neglected
and had suffered severe child abuse at the hands of their parents. A dispositional hearing
order was then entered on February 9, 2018, directing that the Children should remain in
their current placements.

Mother appealed the juvenile court’s ruling to the trial court. Following the trial
court judge’s recusal, Chancellor Elizabeth Asbury presided over this matter by
interchange. The trial court conducted a de novo trial spanning three non-consecutive
days in July and October 2018, during which the court heard testimony from the parties,
four of the Children, and other witnesses. The trial court entered extensive findings of
fact and conclusions of law on November 13, 2018, ultimately concluding that the
Children were dependent and neglected.

The trial court found that all of the Children had suffered abuse and neglect
pursuant to Tennessee Code Annotated § 37-1-102. The court also found that Josiah,
Nehemiah, and Jonathan had been subjected to severe child abuse pursuant to Tennessee
Code Annotated §§ 37-1-102(B)(22) and 39-15-402(a)(3). Moreover, Hadasah had
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endured educational neglect so as to adversely affect her welfare pursuant to Tennessee
Code Annotated § 39-15-401(b). The court specifically determined that the neglect and
abuse suffered by the Children was at the hands of the parents. On December 31, 2018,
the trial court entered an adjudicatory hearing order, incorporating its previous findings
and conclusions.

On May 31, 2019, the trial court entered further findings of fact and conclusions of
law following a dispositional hearing conducted over three non-consecutive days in
January and April 2019. The court considered testimony from the parties and other
witnesses during these hearings and again made extensive factual findings, including that
neither parent had shown by clear and convincing evidence that the Children would be
safe and free from further abuse in his or her home. Although the court found that
Mother had demonstrated great improvement in her lifestyle and mental state since her
separation from Father, the court also determined that her lack of disclosure with
therapists was “troubling.” Additionally, the court found that Father’s failure to work
with licensed counselors was a concern. The court noted that each parent blamed the
other or the maternal grandfather for his or her estrangement from the Children and that
neither had acknowledged his or her fault in the situation.

The trial court ultimately determined that it was in the best interest of the Children
to continue their current placements, with therapeutic counseling with the parents to
occur when the respective counselors recommended it. Mother was allowed to continue
to have supervised visits with the two youngest children. Furthermore, the court ordered
that Father would not be allowed to have therapeutic visits until he participated in
counseling with a licensed counselor for a reasonable period of time and was candid
about his prior conduct. Both parents timely appealed to this Court.

II. Issues Presented

Mother presents the following issues for our review, which we have restated
slightly as follows:

1. Whether the juvenile court erred by issuing a bench order removing
the Children from Mother’s custody and continuing such removal
beyond the period of eighty-four hours.

2. Whether the trial court erred by determining the Children to be
dependent and neglected.

3. Whether the trial court erred by determining that Mother had
committed severe child abuse.

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 4. Whether the trial court erred by failing to return custody of the
Children to Mother or direct that reunification be sought by DCS.

Father has likewise raised the issue of whether the dependency and neglect adjudication
was unfounded.3

III. Standard of Review

Concerning the standard of review in dependency and neglect cases involving
severe child abuse, this Court has previously elucidated:

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

3
Although Father purports to argue additional issues in the body of his appellate brief, the sole issue
raised in his statement of the issues was whether the trial court’s dependency and neglect finding was in
error. As such, any other issues not raised in the statement of the issues are deemed waived. See
Champion v. CLC of Dyersburg, LLC, 359 S.W.3d 161, 163 (Tenn. Ct. App. 2011)
(“An issue not raised in an appellant’s statement of the issues may be considered waived.”).

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 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 M.D., No. M2015-01023-COA-R3-JV, 2016 WL 5723954, at *3-4 (Tenn. Ct. App.
Sept. 30, 2016) (quoting In re Kaitlynne D., No. M2013-00546-COA-R3-JV, 2014 WL
2168515, at *1-2 (Tenn. Ct. App. May 21, 2014)).

IV. Removal Order

Mother contends that the juvenile court erred by removing the Children from her
custody via a bench order when DCS had not yet filed a petition seeking removal.
Mother relies upon various statutory sections contained within Title 37 of the Tennessee
Code concerning juvenile courts and proceedings, specifically, Tennessee Code
Annotated § 37-1-108 (West 2017), which provides that proceedings in juvenile court
may be commenced, inter alia, by the filing of a petition, and § 37-1-111 (2014), which
establishes that venue is generally proper in the county in which the child resides or, for
dependency and neglect proceedings, in the county in which the child is present when the
action is commenced. As Mother points out, the Children were residing with her in
Davidson County at the time of their removal.

DCS posits, and we agree, that juvenile courts have exclusive original jurisdiction
over proceedings “in which a child is alleged to be delinquent, unruly or dependent and
neglected . . . .” Tenn. Code Ann. § 37-1-103 (2014). We also concur with DCS’s
contention that courts must “look to the substance rather than to the form of the
pleadings” in order to determine whether the petition filed contains allegations of
dependency and neglect. See Fletcher v. Fletcher, No. E2001-01223-COA-R3-JV, 2002
WL 459012, at *4 (Tenn. Ct. App. Mar. 26, 2002) (determining that a “Petition for
Emergency Custody” raised allegations of dependency and neglect even though the
petitioners did not specifically seek such a finding); see also J.W.G. v. T.L.H.G., No.
M2002-02656-COA-R3-JV, 2003 WL 22794537, at * 4 (Tenn. Ct. App. Nov. 25, 2003)
(treating the father’s petition for custody as a dependency and neglect action based on the
allegations contained therein).

In the case at bar, there is no dispute that Mother filed a petition seeking entry of
an order of protection against Father based on allegations of physical abuse and domestic
violence. During the circuit court trial, Mother read into the record the allegations
contained in her original petition, which included statements that Father had engaged in
such behaviors as “breaking things, grabbing arms, smacking children. . . . Spanking too
hard sometimes. Hit me twice.” Mother testified that these allegations concerning Father
were true and that the Children had suffered abuse by reason of his actions. Tennessee
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Code Annotated § 37-1-102(b)(13) (West 2017) defines a dependent and neglected child
as, inter alia, one who “is suffering from abuse . . . .” Because Mother’s petition
included allegations of dependency and neglect, she cannot now argue that the juvenile
court lacked jurisdiction in this matter.

Furthermore, with regard to Mother’s allegations concerning venue, it is
undisputed that the Children and Mother were living in Fentress County with Father at
the time of the filing of Mother’s petition. As such, venue was proper in Fentress County
based on Tennessee Code Annotated § 37-1-111 (providing that venue is generally proper
in the county in which the child resides or, for dependency and neglect proceedings, in
the county in which the child is present when the action is commenced). The fact that
Mother had purportedly left Fentress County and found temporary housing at a safe
shelter in Davidson County by the time of the hearing does not alter the fact that she and
the Children were residing in Fentress County at the time her petition was filed, and no
transfer was sought pursuant to Tennessee Code Annotated § 37-1-103(d)(3).

Mother further asserts that the juvenile court proceeded without probable cause in
issuing its bench order removing the Children from her custody and failed to find that
there was no less drastic alternative to removal. We disagree. The juvenile court’s order
specifically stated that proof presented during prior hearings concerning the order of
protection, Josiah’s statements, and Mother’s letter expressing that she wanted to dismiss
the order of protection all provided evidence that the Children were dependent and
neglected. The juvenile court also found that because of the emergency nature of the
Children’s conditions, the lack of preventative measures was reasonable and that there
was no less drastic alternative to removal. Mother’s contentions concerning a lack of
proper findings are unavailing.

Finally, Mother posits that the juvenile court erred by continuing the removal of
the Children beyond a period of eighty-four hours, pursuant to Tennessee Code
Annotated § 37-1-117(b)(1) (West 2017), which provides that a preliminary hearing shall
be held no later than eighty-four hours after the child is removed. Mother failed to raise
this argument during the de novo hearing before the trial court, however, and cannot do
so for the first time on appeal. See Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d
147, 153 (Tenn. 1991) (“[I]ssues not raised in the trial court cannot be raised for the first
time on appeal.”). We therefore determine that Mother’s sub-issue concerning the timing
of the preliminary hearing has been waived.4 For all of the foregoing reasons, we find
Mother’s issue concerning the juvenile court’s removal order to be without merit.

4
We note that the juvenile court’s June 14, 2017 order specifically provided that further hearing would be
held on July 10, 2017, “or within 72 hours of a request for a hearing by either parent.” Mother has not
argued that she requested a preliminary hearing within seventy-two hours. See, e.g., In re Spencer P., No.
M2009-00019-COA-R3-JV, 2010 WL 2160694, at *3 (Tenn. Ct. App. May 27, 2010) (explaining that the
first phase of a dependency and neglect proceeding “involves a preliminary hearing, the function of which
is to allow the juvenile court to decide whether, based on a finding of ‘probable cause,’ the child should
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 V. Dependency and Neglect Adjudication

Both parents assert that the trial court erred by determining that the Children were
dependent and neglected while in the parents’ care. Tennessee Code Annotated § 37-1-
102(b)(13) defines a dependent and neglected child, in pertinent part, as one:

(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;

(D) Whose parent, guardian or custodian neglects or refuses to provide
necessary medical, surgical, institutional or hospital 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 . . . .

Following a de novo trial, the trial court made the following findings related to its
ultimate determination that the Children were dependent and neglected:

1. The Court finds the testimony of the children, Josiah, Nehemiah,
Jonathan, and Hadasah to be credible. Further, the Court finds the
testimony of all non-party witnesses to be credible. The negative
inference that can be drawn from pleading the 5th Amendment by
both parents is given appropriate weight.

2. Josiah, Nehemiah, and Jonathan were subjected to severe beatings
by [Father]. [Mother] witnessed and at times participated in the
beating of these children. The Father used a large wooden paddle
described by one of the children as a two by four. Mother used a
ruler or wooden spoon. Further, two (2) of these children were
subjected to cruel and torturous behavior by being locked in closets,
forced to wear wetsuits that were sewn so that they could not be
removed, and being exposed to their parents’ domestic violence

be removed from the parent’s custody pending an adjudicatory hearing.”).
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 issues. Mother smeared baby feces on Josiah and on Nehemiah as
punishment. At times the children were made to hit each other.

3. The three (3) older boys hereinabove referenced sustained bruises to
their bodies as a result of the beatings. Further, on at least one (1)
occasion, Nehemiah had an open wound on his buttocks area as a
result of the beating. On another occasion, [he] received an injury to
his hand during a beating which caused extreme swelling.

4. The male school age children received marginal education through
home schooling by their Mother and at Faith Christian School. The
parties’ daughter, Hadasah, endured extreme educational neglect in
that she received very little education pursuant to a home school
program administered by her Mother. Hadasah, at the age of a 6th
grader, performed at a 2 percentile in math and a 4 percentile in
reading. Therefore, 98% of 6th graders performed better than her in
math and 96% of 6th graders performed better than her in reading.
The school principal confirmed these facts.

5. The four (4) older children were forced to endure an impossible
interrogation cycle by their parents. Some of the children were
sexually abused by a sitter. That resulted in the parents forming a
belief that the children were perpetrating [on] each other. The
children were interrogated and questioned on a regular basis, up to
six (6) times per week, about whether they had touched one of the
other children in a sexual manner. If the children denied that action,
they received a beating. If they admitted that action, they received a
beating. Mother would require all the children to clap their hands
for extended periods of time. If they were clapping they could not
touch each other. The children were placed in an impossible
situation which was detrimental to their mental and emotional well-
being.

6. All of the [Children] endured exposure to domestic violence by their
parents. According to the testimony of [four of the Children], their
parents fought on a regular basis, their yelling and screaming often
[went] into the wee hours of the morning, their arguing with each
other occurred at places such as Walmart, the children were
routinely late for school because their parents were arguing, the
children had to endure their parents’ accusations of looking at or
receiving attention from other men/women. On at least one (1)
occasion, Mother was physically assaulted by Father striking her on
the foot.
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7. Mother filed a Petition for Order of Protection wherein she swore
under oath that Father had physically and otherwise abused her and
the children. She ultimately requested dismissal of that Petition at
which time the children were bench[-]ordered into custody.

8. It is recognized that a significant portion of the physical and
emotional abuse occurred in the state of California. However, the
children were also subjected to domestic violence between their
parents, physical abuse, continuing educational neglect, and
environmental neglect in Fentress County, Tennessee.

9. The residence at Tinchtown Road in Fentress County, Tennessee
was not properly maintained. The children testified to rats being in
the residence. This was confirmed by Father. The children testified
that, at times, when they would bounce on the furniture, rats would
run out of the furniture and they would kill the rats. Further, the
children testified that large amounts of trash accumulated in and
about the residence particularly in a detached garage. A rat
infestation problem resulted from the trash. Although the parents
had operable motor vehicles, the trash was not regularly taken to the
dump. Additionally, the mobile home in which the family last
resided was a two (2) bedroom mobile home. Thus, the children
could not avoid hearing the constant arguing of their parents.

10. As the emotional turmoil intensified, it appears that Mother reached
a breaking point. The oldest child was living outside of the home
and attending a public high school in Fentress County, Tennessee.
Apparently, after leaving an ambulance, Mother walked in the cold
rain to the school. She told her son that he had been a great son.
She led him to believe she was going to harm herself. Someone at
the school took Mother to the hospital. It is unclear whether she
received treatment.

11. According to Jerri Cross, a Tennessee licensed professional
counselor, Malachi and Hope were subjected to domestic violence
by their parents. She stated this exposure is detrimental to their long
term mental health.

12. Both Malachi and Hope have been diagnosed with having an
Adjustment Disorder. Dr. Cross testified that Mother told her
Malachi would freeze and shudder when his Father came into the
room. She stated that Hope expressed suicidal ideations.
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 13. Nehemiah acknowledged that he had suicidal ideations.

Based upon these findings, the trial court determined that DCS had proven by clear and
convincing evidence that the Children were dependent and neglected while in the care of
the parents. Upon our thorough review of the record, we agree.

As this Court has explained:

[W]hether 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. This
Court reviews the trial court’s findings of fact de novo on the record
accompanied by a presumption of correctness, “unless the preponderance of
the evidence is otherwise.” Tenn. R. App. P. 13(d); In re M.J.B., 140
S.W.3d 643, 654 (Tenn. Ct. App. 2004). 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.

In re Tamera W., 515 S.W.3d 860, 870-71 (Tenn. Ct. App. 2016) (other internal citations
omitted).

The proof in this matter demonstrated that the Children were clearly subjected to
abuse and neglect through the conduct of the parents. Four of the children testified
consistently and with great detail concerning the physical and verbal abuse that was
inflicted upon them by both Father and Mother. Although considerable abuse occurred
when the family previously resided in California, their testimony was clear that the abuse
continued after the family moved to Tennessee. The trial court’s findings concerning the
abuse, as detailed above, are well supported by the evidence.

Josiah and Nehemiah both testified that Father’s physical abuse of them persisted
when the family lived in Fentress County. Johnathan and Hadasah confirmed this. All
four testified that they were subjected to continuing verbal abuse as well. Furthermore,
all four of the children who testified disclosed being subjected to domestic violence in
Tennessee in the form of constant yelling and fighting by the parents, to the extent that
the Children were unable to sleep at night. As described by Hadasah, the parents argued
almost constantly and did little else. The four children who testified related that the older
siblings assumed responsibility for the care of the younger siblings while the parents
fought.

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 The testifying children also consistently described the unsanitary living conditions
that the family endured in Tennessee, including rodent infestations and piles of garbage
and unwashed laundry. Moreover, although the Children were allegedly being
homeschooled, the testifying children stated that they did little schoolwork at home and
were never tested. As a result, all of the Children were behind in their grade-level
knowledge and skills when they enrolled in school, with Hadasah suffering the greatest
educational neglect. Although the school-age boys were eventually enrolled in school,
Hadasah and Hope were not. In fact, Hadasah stated that she spent a significant amount
of her time helping Mother take care of the younger siblings, such that when she entered
public school in sixth grade, she could barely read and write.

As a result of their living conditions with the parents, Josiah and Nehemiah each
reported that he had contemplated suicide. Ms. Cross, the counselor working with Hope
and Malachi, testified that both of those children expressed fear of being abused by their
parents. She further reported that Hope had also presented suicidal thoughts. All four of
the children who testified stated that they felt unsafe when living with the parents. The
three testifying children who were still minors related that they did not wish to visit with
their parents. In addition, Nehemiah explained that Nathaniel and Noah did not enjoy
visiting with their parents and were stressed and traumatized by the visits. Ms. Cross
reported that Hope and Malachi had expressed anger toward their parents for the abuse
suffered by their older siblings.

Although the parents invoked their Fifth Amendment privilege against self-
incrimination regarding most of the abuse allegations, Mother did admit that Father had
been abusive toward her and the Children, both physically and verbally. Mother stated
that her concerns over Father’s behavior toward the Children prompted her relocation to
Nashville. Mother also admitted that Hadasah’s education had been neglected. Father
admitted that he had spanked the Children “too hard” and that he had anger issues.
Father further admitted that he had hit Mother’s foot and grabbed her wrist. Father
acknowledged that Mother and he frequently argued and yelled with the Children present.

Based upon our review of the proof presented at trial, we determine that the
evidence supports the trial court’s finding, by clear and convincing evidence, that the
Children were dependent and neglected while in the care of the parents. Mother and
Father argue, however, that the trial court should have looked at the circumstances that
existed at the time of the Children’s removal and/or the time of the de novo hearings in
the trial court to determine whether the Children were dependent and neglected. See
Green v. Green, No. M2007-01263-COA-R3-CV, 2009 WL 348289, at *10 (Tenn. Ct.
App. Feb. 11, 2009) (“[I]in a de novo appeal, the circuit court does not review the
juvenile court’s decision or determine the validity of the juvenile court’s action. Instead,
the circuit court is to make its own decision based on the evidence presented to it.”).
Mother argues that because the Children were “safe” at the time of their removal, they
should not have been adjudicated as dependent and neglected. Moreover, Mother and
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Father argue that by the time of the dispositional hearings, their circumstances had
changed in that both were working, each had a separate and suitable residence, and they
had finalized their divorce. We determine the parents’ arguments to be unavailing.

As to Mother’s contention that the Children were no longer dependent and
neglected at the time of their removal due to her move to Nashville, which she alleges
had rendered the Children “safe,” we note that at least two of the testifying children
described living in unsuitable conditions in the domestic violence shelter, which Hadasah
described as “dirty.” Nehemiah stated that the family had an inadequate food supply
while living in Nashville. Hadasah also reported that Mother was acting “crazy” and was
somewhat unresponsive to their pleas.

By the time of the de novo trial, the Children were residing with relatives, and the
testifying children described their lives as “normal” for the first time. As previously
explained, however, the children still expressed fear of the parents and did not want to
visit with them. Although the parents had improved their living conditions somewhat,
neither parent apparently recognized the role he or she had played in the Children’s
trauma. Instead, as the trial court found, the parents attempted to deflect blame and
mislead their counselors concerning the magnitude of the abuse. As such, we determine
that the Children remained dependent and neglected by the time of trial in the trial court.
See Green, 2009 WL 348289, at *10 (affirming the trial court’s dismissal of the father’s
dependency and neglect petition because the mother was no longer living with a
registered sex offender at the time of trial). We find the parents’ contentions to the
contrary to be without merit.

VI. Severe Child Abuse

Mother also asserts that the trial court erred by determining that she had
committed severe child abuse against the Children. The trial court specifically found that
Josiah, Nehemiah, and Jonathan had been subjected to severe child abuse at the hands of
their parents. The statutory definition of severe child abuse applicable to dependency and
neglect proceedings is found in Tennessee Code Annotated § 37-1-102(b)(22) (West
2017), which provides in relevant part:

(22) “Severe child abuse” means:

(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;

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 (ii) “Serious bodily injury” shall have the same meaning
given in § 39-15-402(d).

(B) Specific brutality, abuse or neglect towards a child that in the
opinion of qualified experts has caused or will reasonably be
expected to produce severe psychosis, severe neurotic
disorder, severe depression, severe developmental delay or
intellectual disability, or severe impairment of the child’s
ability to function adequately in the child’s environment, and
the knowing failure to protect a child from such conduct[.]

“Serious bodily injury” includes, but is not limited to, “second- or third-degree burns, a
fracture of any bone, a concussion, subdural or subarachnoid bleeding, retinal
hemorrhage, cerebral edema, brain contusion, injuries to the skin that involve severe
bruising or the likelihood of permanent or protracted disfigurement, including those
sustained by whipping children with objects.” Tenn. Code Ann. § 39-15-402(d) (West
2017).

In this case, the evidence was clear that Mother had knowingly failed to protect
the three eldest children from physical abuse occurring in California that was likely to
cause serious bodily injury or death. As examples of the acts occurring in California,
Josiah, Nehemiah, and Jonathan confirmed that Mother was aware of the beatings
inflicted by Father with a large, wooden paddle or “two by four” but that Mother did
nothing to intervene for their protection. They also testified that Mother was aware of the
bruises and injuries inflicted upon them. Hadasah explained that she had once entered
the room when Mother was inspecting an open wound on Nehemiah’s buttocks caused by
Father’s hitting him. Furthermore, testimony demonstrated that Mother had participated
in the acts of locking the eldest three boys in closets and “sewing” them into wetsuits at
night without providing them with adequate ventilation or the ability to use the restroom.

After moving the family to Tennessee, Mother still failed to protect the Children
from ongoing abuse by Father, which the three eldest children testified had persisted,
albeit not as frequently. Mother acknowledged at trial that in her petition seeking an
order of protection, she claimed that Father had been “smacking” the Children and had
spanked them too hard. Mother testified that these allegations were true. In addition,
Mother acknowledged two specific incidents of physical assault by Father about which
Josiah and Nehemiah had previously testified. In one instance, Josiah reported that
Father had assaulted him in the parking lot of a Wal-Mart and “slammed” him against the
side of the family’s van. Nehemiah described an instance when Father tackled him to the
floor inside the Fentress County home, causing Nehemiah to hit his head. Moreover,
Mother admitted that the Children had suffered in her home and that she understood why
they were angry.

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 In addition to the above, Ms. Cross testified that Hope and Malachi had witnessed
significant domestic violence in the home and that, over time, such environment could
cause severe depression. Mother admitted her participation in the ongoing arguments and
altercations with Father that occurred in the home. In addition, at least three of the
Children had expressed having suicidal thoughts while in the care of the parents.

Based on our thorough review of the record, we determine that the evidence
presented supports the trial court’s finding, by clear and convincing evidence, that
Mother committed severe child abuse against the Children. Mother participated in and
failed to protect the Children from abuse that was likely to and did cause serious bodily
injury and severe depression in the Children. We therefore affirm the trial court’s finding
that Mother had perpetrated severe child abuse while the Children were in her care.

VII. Reunification

Finally, Mother argues that the trial court erred by failing to return custody of the
Children to Mother or direct that reunification be sought by DCS. Based on the finding
of severe child abuse perpetrated by Mother, we disagree.

Tennessee Code Annotated § 37-1-130(c) (West 2017) provides:

No child who has been found to be a victim of severe child abuse shall be
returned to the custody or residence of any person who engaged in or
knowingly failed to protect the child from the brutality or abuse unless the
court finds on the basis of clear and convincing evidence that the child will
be provided a safe home free from further such brutality and abuse. The
court shall file written findings of fact that are the basis of its conclusions
on that issue within thirty (30) days of the close of the hearing or, if an
appeal or petition for certiorari is filed, within five (5) days thereafter,
excluding Sundays. No such child shall be returned to such custody on the
basis of the court’s order until five (5) days after entry of the order without
the consent of the department and the petitioner.

Regarding this issue, the trial court found that neither parent had shown clear and
convincing evidence that the Children would be “provided a safe home free from further
brutality and abuse.” Although the court commended Mother concerning improvements
to her lifestyle and mental state, the court found her lack of disclosure with therapists and
the evaluator regarding her participation in the abuse to be troubling. The court also
noted that Mother continued to blame Father for her estrangement from the Children and
had not acknowledged her own responsibility for the current situation. Following our
thorough review of the evidence, we determine that the proof supports the trial court’s
findings and conclusions in this regard.

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 Based on the trial court’s determination that the parents had subjected the eldest
children to severe child abuse, “the trial court was authorized by section 37-1-
166(g)(4)(A) to order a disposition of the child[ren] that did not include an effort toward
reunification.” See In re Tamera W., 515 S.W.3d at 876. We therefore determine
Mother’s final issue to be without merit.

VIII. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment in its entirety.
Costs on appeal are assessed one-half to Mother, Amy H., and one-half to Father,
Timothy H. We remand this matter to the trial court for further proceedings consistent
with this opinion.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

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