In Re: Travion L.M.B. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 13, 2013 Session
IN RE TRAVION B. ET AL.
Appeal from the Juvenile Court for Knox County
No. 73540 Timothy Irwin, Judge
No. E2012-01673-COA-R3-PT-FILED-AUGUST 19, 2013
This is a termination of parental rights case focusing on Travion B. and Davion B., the minor
children (“Children”) of Samantha B. (“Mother”). The Children were taken into protective
custody by the Tennessee Department of Children’s Services (“DCS”) on January 24, 2011,
after the younger child suffered a head injury. On October 6, 2011, DCS filed a petition to
terminate the parental rights of Mother. Following a bench trial spanning four days, the trial
court granted the petition upon its finding, by clear and convincing evidence, that Mother had
committed severe child abuse. The court further found, by clear and convincing evidence,
that termination of Mother’s parental rights was in the Children’s best interest.1 Mother has
appealed. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
T HOMAS R. FRIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.
Ben H. Houston, II, Knoxville, Tennessee, for the appellant, Samantha B.
Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
1
According to the petition for termination of Mother’s parental rights, Travion and Davion had
different fathers whose identities were confirmed by paternity testing. DCS sought termination of the
fathers’ respective parental rights through proceedings independent of this action.
OPINION
I. Factual and Procedural Background
The injury giving rise to the allegation of severe child abuse in this action became
apparent when Davion, who was six months old, was transported by ambulance to East
Tennessee Children’s Hospital in the early morning hours of January 22, 2011. Davion was
diagnosed with a subdural hematoma and bilateral retinal hemorrhages. His treating
pediatrician, Dr. Marymer Perales, testified at the trial that these injuries were indicative of
inflicted trauma, specifically by rotation or acceleration/deceleration forces inflicted by
shaking. The older child, Travion, was sixteen months old at the time and was not alleged
to have suffered abusive injury.
Mother was sixteen years old when Travion was born and seventeen upon Davion’s
birth. At the time of Davion’s injury, Mother and the Children had been residing with
Mother’s friend, D.B., for two to three weeks in D.B.’s apartment. Also living in the home
were D.B.’s two children and her mother, M.C. Mother and the Children slept together in
the one bed in Mother’s bedroom. D.B. and her two children occupied the other bedroom
while M.C. slept on the couch in the living room.
On January 22, 2011, Davion awoke crying at approximately 2:00 a.m. Mother
testified that she tried to comfort Davion for approximately ten minutes before he “shivered”
for about five seconds and then threw his head back with his eyes rolling back in his head.
Mother said she placed Davion on the carpeted floor to protect his neck and went into D.B.’s
room to awaken her for help. As Mother explained, she picked up Travion, who was
sleeping, and carried him as she went to D.B. for assistance. D.B. and M.C. both indicated
at trial that Mother had neither child in her arms when she went to D.B.’s room.
Mother and D.B. came back into Mother’s room where Davion remained on the floor.
Testimony differed as to whether D.B. picked up Davion and attempted to rouse him when
Mother and she returned to Mother’s room. At some point M.C. entered the room, picked
up Davion, and attempted to rouse him. D.B., at Mother’s request, called 911 to summon
emergency medical responders. Mother testified at the trial that thirty to forty-five minutes
passed between the time Davion’s crying awakened her and the call to 911 was made. She
admitted telling investigators on January 22, 2011, that only four or five minutes elapsed
before she asked D.B. to call 911. Davion was transported by ambulance to East Tennessee
Children’s Hospital.
The Children were placed in the emergency protective care of DCS on January 22,
2011. The trial court entered a protective custody order on January 24, 2011. On October
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6, 2011, DCS filed a petition to terminate the parental rights of Mother as to the Children.
Following a bench trial held over four non-consecutive days beginning March 8, 2012, and
concluding August 2, 2012, the trial court found by clear and convincing evidence that
Mother had committed severe child abuse against Davion and that it was in the best interest
of the Children to terminate Mother’s parental rights. The trial court entered its final decree
on January 2, 2013. Mother timely appealed.
II. Issues Presented
On appeal, Mother presents two issues, which we have restated as follows:
1. Whether the trial court erred by finding clear and convincing evidence that
Mother had committed severe child abuse and by terminating Mother’s
parental rights based on that ground pursuant to Tennessee Code Annotated §§
37-1-102(b)(23)(A) and 36-1-113(g)(4).
2. Whether the trial court erred by finding clear and convincing evidence that it
was in the Children’s best interest to terminate Mother’s parental rights.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599(1982)). As our Supreme Court has instructed:
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In light of the constitutional dimension of the rights at stake in
a termination proceeding under Tenn. Code Ann. § 36–1–113,
the persons seeking to terminate these rights must prove all the
elements of their case by clear and convincing evidence. Tenn.
Code Ann. § 36–1–113(c); In re Adoption of A.M.H., 215
S.W.3d at 808–09; In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The purpose of this heightened burden of proof is to
minimize the possibility of erroneous decisions that result in an
unwarranted termination of or interference with these rights. In
re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005). Clear and
convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, In re Audrey S.,
182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and eliminates any
serious or substantial doubt about the correctness of these
factual findings. In re Valentine, 79 S.W.3d at 546; State, Dep’t
of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447
(Tenn. Ct. App. 2008).
In re Bernard T., 319 S.W.3d at 596.
IV. Severe Child Abuse
The trial court terminated Mother’s parental rights on the statutory ground that she
committed severe child abuse. Tennessee Code Annotated § 36-1-113(g)(4) (Supp. 2012),
as relevant to this action, provides:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:
***
(4) The parent or guardian has been found to have committed
severe child abuse as defined in § 37-1-102, under any prior
order of a court or is found by the court hearing the petition to
terminate parental rights or the petition for adoption to have
committed severe child abuse against the child who is the
subject of the petition or against any sibling or half-sibling of
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such child, or any other child residing temporarily or
permanently in the home of such parent or guardian . . . .
Tennessee Code Annotated § 37-1-102(b)(23) (Supp. 2012) defines “severe child abuse,” in
relevant part, as:
(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 . . . .
As this Court has previously explained:
a parent’s conduct is “knowing, and a parent acts or fails to act ‘knowingly,’
when . . . she has actual knowledge of the relevant facts and circumstances or
when . . . she is either in deliberate ignorance of or in reckless disregard of the
information that has been presented to . . . her.”
In re H.L.F., 297 S.W.3d 223, 236 (Tenn. Ct. App. 2009) (quoting In re R.C.P., No. M2003-
01143-COA-R3-PT, 2004 WL 1567122 at *7 (Tenn. Ct. App. July 13, 2004)).
In its order terminating Mother’s parental rights, the trial court summarized its
findings of fact regarding severe child abuse as follows:
The Court is persuaded by the testimony from Dr. Perales that the
incident causing this child’s injuries occurred at the time the mother and her
two small children were alone in the bedroom, shortly before 911 was called.
The child suffered a subdural hematoma and severe retinal hemorrhages.
Those findings and the lack of obvious external trauma points to shaking as the
cause of this child’s injuries. The injuries were not self-inflicted, not inflicted
by the then-16-month-old brother, and did not occur during the normal course
of child care. The court finds, by clear and convincing evidence, that [Mother]
caused Davion’s injuries.
Mother offered no explanation at all for the child’s injuries, other than
a fall from a low couch onto a carpeted floor, and the child hitting his head on
the tub. Her story was inconsistent, in many respects, from initial interviews
to her testimony in Court. (Whether she went to D.B.’s room, or screamed for
D.B. to come to [Mother’s] room; the length of time for the mother to call 911
(4-5 minutes vs. 30-45 minutes); where mom was when Travion pulled Davion
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off the couch, on the couch next to Davion, or in the love seat across from
Davion; whether mom was even in the room when it happened; whether
Davion cried or did not cry when pulled off the couch; whether or not others
cared for Davion at all; when others cared for Davion (the day before, the
week before, or two weeks before the incident; and whether Davion hit his
head on a ceramic bathtub as opposed to a plastic baby tub, to name a few.)
Dr. Perales ruled out the fall and the tub incident as possible causes of
the child’s injuries by stating that this injury was not caused by the child
himself or by a child of the same age as this child’s older brother, and by
opining that this was inflicted, not accidental trauma. Mother placed herself
alone with the child at the time the child became symptomatic. She indicated
that, on two separate occasions, others had cared for her child, contrary to her
first assertions to law enforcement and DCS. However her recollection of
when those incidents occurred was very vague – they could have happened the
day before and the week before the incident, or they could have happened the
week before and two weeks before the incident. In any case, mother denied
that Davion appeared in any way to be acting significantly differently after
being cared for by others. She also denied that the child acted significantly
differently after the fall and the bathtub incident. She had no concern
significant enough to lead her to believe that Davion should see the doctor
after either the fall or the bathtub incident, or after others cared for Davion.
She had no reason to believe that he was injured significantly while in the care
of others. This Court also has no reason to so believe.
The Court considers it odd that [Mother] would leave Davion, in
obvious distress, on the floor, and take the well child, Travion, with her to get
help from [D.B.].
The Court has known [Mother] for a long time, and is surprised to come
to the conclusion that she could have hurt her child. However, the testimony
of [M.C.], reluctantly given, that the mother threatened to throw the baby
against the wall if he does not stop crying, together with the other facts, leads
the Court to the conclusion that she did become frustrated and did something
to Davion to cause his injuries. This conclusion is supported by [D.B.’s]
testimony that she heard, that night, Davion crying and then stop. This Court
did give much credibility to the testimony of [D.B.] and [M.C.], but the Court
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does [sic]2 believe their testimony regarding the statements of the mother, and
that the child stopped crying.
[Mother] has had ample opportunity to acknowledge what this Court
has found, that she injured her child, and has had ample opportunity to take
advantage of mental health counseling to address the underlying issues leading
her to such actions. She, however, has failed to do so.
Based on the totality of the testimony, the trial court determined that the statutory
ground of severe child abuse had been proven by clear and convincing evidence. Mother
contends that the trial court erred in this finding because the court’s reliance on Dr. Perales’s
testimony was misplaced according to recent developments in the medical research
surrounding injuries caused by rotation or acceleration/deceleration trauma, commonly
known as shaken baby syndrome. We disagree.
Dr. Perales testified that she is a child abuse pediatrician at East Tennessee Children’s
Hospital and that she treated Davion in the emergency room on January 22, 2011, as well as
throughout his hospitalization. She said that a computerized axial tomography (“CT”) scan
performed upon Davion’s admission revealed a left-sided subdural hematoma. She explained
that a subdural hematoma is “blood in the area between the dura and arachnoid . . . but
between two layers of the area between the brain and the scalp that is not a space that is
necessarily always there, it’s just a potential space where blood vessels go through.”
According to Dr. Perales, it is abnormal to find a subdural hematoma in a child, and trauma
is a likely cause. She explained that on January 22, the subdural hematoma was acute,
indicating that it was recent. The subdural hematoma had become subacute by the time a
second CT scan was performed on January 24, 2011. Dr. Perales testified that there is
usually a seventy-two hour window during which an acute subdural hematoma may resolve
itself and become subacute. Based on everything she knew about Davion, Dr. Perales opined
that his head injury occurred when he became symptomatic, which event was described by
Mother as happening in the middle of the night a few hours before his hospitalization on
January 22, 2011.
Dr. Perales had previously treated Davion during a September 2010 hospitalization
when he was diagnosed with bronchiolitis. She consulted with a neurologist at that time
because Davion presented “high tone, or stiffness and jerkiness in his joints.” She testified
that it was possible Davion sustained an injury to the brain prior to being treated in
2
In its ruling from the bench, the trial court stated about D.B. and M.C.: “I didn’t find those two
witnesses very credible . . . . But there’s no reason to believe that they were lying when they said the crying
stopped.”
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September 2010. She was certain, however, that he did not have a subdural hematoma at that
time because the CT scan taken during the 2010 admission did not indicate one. During the
January 2011 admission, Dr. Perales observed that Davion’s tone was significantly lower.
She opined that this reduction in tone may have been due to the head injury, as she would
expect “low tone” in a child with such a condition.
Upon Davion’s January 22, 2011 admission, Dr. Perales requested an ophthalmology
consultation, which revealed that Davion had bilateral retinal hemorrhages in multiple layers
and multiple quadrants of the eyes, indicating a greater likelihood of inflicted trauma. Dr.
Perales maintained that Davion’s injuries were consistent with injuries caused by rotation or
acceleration/deceleration. She opined that the injuries had been sustained by Davion within
twenty-four hours of his hospitalization and that the injuries could not have been self-
inflicted or inflicted by a sixteen-month-old child such as Davion’s brother. Instead, she said
there were two possibilities for how trauma could have resulted in Davion’s injuries, one was
by direct impact and the other by rotational or acceleration/deceleration forces. She found
no sign of direct impact in this case, concluding that rotational or acceleration/deceleration
forces had caused the injury.
Dr. Perales considered the radiologist’s report when she reached her conclusion
regarding Davion’s injuries. She said the radiologist believed there could have been a
previous subdural hematoma and that the blood from the new hematoma was mixing with
the prior injury. Dr. Perales explained that infants with subdural hematomas will sometimes
form protective membranes around the bleeds. According to Dr. Perales, research exists
suggesting that membrane formation could be a reason for some infants’ hematomas healing
more slowly than others. When asked if an “old brain bleed” could have “rebled causing the
subdural hematoma,” Dr. Perales answered:
I guess in theory it could, the – if you read through my consult, though,
as I took everything into consideration, I don’t believe I ever wrote that I felt
that there was an old bleed there. I do acknowledge that from the first CT to
the second CT there was increased space, but give into account that the
previous CTs were normal, it’s not what I felt the process was. Or the
progression was.
Dr. Perales further explained that subdural hematomas in infants can be asymptomatic.
She noted that the subdural hematomas that are not so large as to require surgical evacuation
usually heal on their own. When questioned regarding the principle of “rebleeding,” she said
the research regarding rebleeding has focused primarily on geriatric patients who would
sometimes reinjure a healing subdural hematoma and experience rebleeding as a result. She
noted there was some application of this research to hydrocephalic babies, or those with fluid
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on the brain, but that the research had not been applied to babies who suffered subdural
hematomas during the birth process.
During the trial, Mother denied ever shaking Davion. She recounted two incidents
occurring approximately a week before his hospitalization that she believed could have
caused his injury. The first was a fall from the couch in the apartment when Travion pulled
Davion onto the floor by his bib. The second was a self-inflicted impact against the side of
a bathtub when Davion flung back his head while she was giving him a bath. Mother’s
testimony was unclear as to exactly when these incidents occurred, although she
acknowledged telling investigators in January 2011 that the bathtub incident occurred on
Tuesday, January 18. She initially testified at trial that the bathtub was a regular ceramic tub
but later acknowledged having told investigators in January 2011 that it was a plastic tub.
Mother further testified that Davion had been cared for by someone other than herself
twice during the week before the injury. The first occasion was approximately a week before
Davion was hospitalized. Mother and D.B. had gone to a club together, with Mother leaving
Davion in the care of her best friend’s sister for about four hours. The second occasion was
during the afternoon of January 21, 2011, when Mother drove with the Children’s maternal
grandmother to purchase diapers and make a car payment, leaving Davion in D.B.’s care for
about forty-five minutes. D.B. testified that she remembered Mother leaving to make the car
payment that day but did not recall if she provided care for Davion while Mother was gone.
M.C. testified that she was present at the apartment on January 21, 2011. She remembered
D.B. caring for Davion while Mother left with the maternal grandmother. Mother at one
point testified that she thought this trip with the maternal grandmother could have been the
previous Friday, specifically January 14.
Mother presented no expert witness at the trial. On appeal, Mother cites three
authorities to support her assertion that recent developments in medical research should lead
us to question Dr. Perales’s testimony regarding the cause of Davion’s injury. The first is
a 2010 United States Supreme Court dissenting opinion in which a three-justice minority
explained that recent medical research questioned whether in the first year of an infant’s life,
the effects of shaken baby syndrome could be mimicked by the opening and rebleeding, upon
minimal impact, of small subdural hematomas that were the natural result of the birth
process. See Cavozos v. Smith, 132 S. Ct. 2, 11 (2011) (Ginsburg, J., dissenting) (opposing
the majority’s holding that evidence was sufficient to uphold the jury’s finding that the victim
died from shaken baby syndrome and subsequent criminal verdict against the defendant).
The second authority Mother cites is a published opinion from a state intermediate
appellate court in Wisconsin in which a criminal defendant convicted of first degree reckless
homicide was granted a new trial, based on newly discovered evidence in the form of
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research developments surrounding shaken baby syndrome. See State v. Edmunds, 746
N.W.2d 590, 592-94, 599 (Wis. Ct. App. 2008). The third authority is a 2009 Washington
University Law Review article examining medical research that questions the “diagnostic
triad” of “retinal bleeding, bleeding in the protective layer of the brain, and brain swelling”
as sufficient grounds for a court to make a criminal determination of child abuse by shaken
baby syndrome. See Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby
Syndrome and the Criminal Courts, 87 Wash. U.L. Rev. 1, 58 (2009).
These authorities upon which Mother relies in support of her position do not constitute
controlling authority for Tennessee courts. See, e.g., Culbreath v. First Tenn. Bank Nat’l
Assoc., 44 S.W.3d 518, 526-27 (Tenn. 2001) (determining that cases from other jurisdictions
and law review articles cited by the appellee were inapposite where other authorities
controlled); Brooks Cotton Co., Inc. v. Williams, 381 S.W.3d 414, 422 (Tenn. Ct. App. 2012)
(consulting a treatise on contract law and an Alabama Supreme Court decision as persuasive
but not controlling authority). As these authorities undertake a review of developments in
medical research in the context of criminal law, we determine such to be inapplicable to the
case at bar.
At trial, the parties stipulated that Dr. Perales was a child abuse pediatric expert. Dr.
Perales personally examined and treated Davion before and after he was diagnosed with a
subdural hematoma on January 22, 2011. Mother’s counsel cross-examined Dr. Perales
regarding the possibility that Davion could have suffered reopening of earlier hematomas,
or “bleeds,” and regarding Dr. Perales’s interpretation of the radiologist’s report that offered
the possibility that blood from a “rebleed” was present on the January 2011 CT scans. Dr.
Perales also testified as to the effect of developing medical research on her opinion of how
Davion was injured. Her ultimate opinion to a reasonable degree of medical certainty was
that Davion suffered an inflicted trauma at the time he became symptomatic, identified by
Mother’s testimony as when the Children were alone with Mother in Mother’s room. Dr.
Perales specifically opined that Davion’s injury could not have been inflicted by a sixteen-
month-old child, by Davion himself, or in the course of providing routine child care. We
determine that the trial court did not err in relying on Dr. Perales’s expert testimony.
Mother also contends that the trial court erred in finding severe child abuse because
two adults besides Mother, D.B. and M.C., had access to Davion during the twenty-four
hours before he was hospitalized. As the trial court noted, Mother’s testimony regarding
when she left Davion with other caretakers was vague and contradictory in relation to what
she initially told investigators. Mother admitted at trial that she first told DCS Investigator
Vickie Fox she had never left her children in anyone else’s care. She indicated she also told
Knoxville Police Detective Damewood she had never left the Children with anyone because
she “didn’t want to get looked at as a bad parent for leaving them.”
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Mother subsequently testified that she had left Davion with another caretaker twice,
once with D.B. while she bought diapers at Walgreen’s with the Children’s maternal
grandmother and upon a separate occasion when she and D.B. attended a club. Regarding
the diaper-buying errand, Mother said she thought the trip to Walgreen’s occurred during the
day on Friday, January 21, 2011, but she was unsure of the day. When asked if she would
agree with what she initially told a DCS investigator, that the journey to Walgreen’s was a
week before Davion’s hospitalization, she answered in the affirmative. She said that D.B.
called her once during the Walgreen’s trip to report that Davion was crying and that she told
D.B. she would be home immediately.
Both D.B. and M.C. testified at the trial that Mother left the apartment once for a short
time with the Children’s maternal grandmother on January 21, 2011. When asked if she
provided cared for Davion while Mother was gone, D.B. was evasive, saying, “I might’ve.
I’m not going to say I didn’t and I’m not going to say I did for sure because it’s been a long
time ago.” M.C., however, testified that D.B. did render care for Davion while Mother was
gone on January 21. M.C. further testified: “[T]hat was the only time I ever saw [Mother]
leave the baby was that day she went with her mom. I mean, she was always there any other
time.”
Regardless of whether Davion was left in the care of D.B. for a short time during the
day on January 21, 2011, Dr. Perales opined that to a reasonable degree of medical certainty,
she believed Davion was injured when he became symptomatic, which Dr. Perales identified
as when Mother said Davion “shivered,” threw his head back with his eyes rolling back in
his head, and became limp at approximately 2:00 a.m. on January 22. Mother’s testimony
places this occurrence as transpiring when she was alone in her room with the Children.
Mother, D.B., and M.C. all testified that Mother placed Davion on the floor and went to
D.B.’s room to wake her. It is undisputed that no one subsequently picked up Davion until
at least when Mother returned with D.B. Davion was already symptomatic by that time.
Also significant was M.C.’s testimony that she heard Davion cry at the time Mother
awoke with him, which M.C. described as “in the middle of the night” on January 21, 2011.
M.C. explained that she then heard the crying suddenly stop. Mother argues that the crying
stopped because Davion went limp, not because Mother harmed Davion. M.C. further
testified, upon review of a transcript of her interview with Detective Damewood, that she had
once heard Mother threaten to slam the baby against a wall if he did not stop crying.
The trial court stated it believed the cessation of crying coincided with when Davion
became symptomatic and with when he was injured by Mother. This was not, however, the
basis for the trial court’s ruling that Mother had committed severe abuse. Instead, the court
found Dr. Perales credible in her expert opinion that the injury was inflicted and that it
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occurred when Davion became symptomatic. It is undisputed that Davion had been
exclusively in Mother’s care for many hours before he became symptomatic.
To further support her position, Mother relies in part on State of Tenn. Dep’t of
Children’s Servs. v. H.A.C., No. M2008-01741-COA-R3-JV, 2009 WL 837709 at *4 (Tenn.
Ct. App. Mar. 26, 2009), for the proposition that evidence of a mere possibility that a parent
severely injured her child, coupled with the parent’s dubious explanations for the injury, are
insufficient to find clear and convincing evidence of severe child abuse. In H.A.C., however,
the child’s father had inflicted the injury, and this Court, determining there was insufficient
evidence to support a finding that the mother knowingly allowed the father to harm the child,
reversed the finding of severe abuse against the mother only. Id. Similarly, in In re Dakota
C.R., No. W2010-01946-COA-R3-JV, 2012 WL 1418048 at *11 (Tenn. Ct. App. Apr. 24,
2012), also cited by Mother for essentially the same proposition, this Court determined there
was insufficient evidence to find the father guilty of severe child abuse where there was no
evidence presented to support that he knew the mother was capable of abusing the children.
Mother’s reliance on these cases is unavailing, as the trial court found that Davion was in her
sole care at the time of the injury.
We conclude that the evidence does not preponderate against the trial court’s
determination by clear and convincing evidence that Mother committed severe child abuse.
The trial court did not err in terminating Mother’s parental rights based upon this ground.
V. Best Interest of Children
When a parent has been found to be unfit by establishment of a ground for
termination, as here, the interests of parent and child diverge, and the focus shifts to what is
in the child’s best interest. In re Audrey S., 182 S.W.3d at 877. Tennessee Code Annotated
§ 36-1-113(i) (2010) provides a list of factors the trial court is to consider when determining
if termination of parental rights is in the child’s best interest. This list is not exhaustive, and
the statute does not require the court to find the existence of every factor before concluding
that termination is in a child’s best interest. In re Audrey S., 182 S.W.3d at 878. Further, the
best interest of a child must be determined from the child’s perspective and not the parent’s.
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
Tennessee Code Annotated § 36-1-113(i) lists the following factors for consideration:
(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;
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(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;
(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 or
controlled substances3 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
3
Effective July 2012, after the filing of the petition in the instant case, The Tennessee General
Assembly amended Tennessee Code Annotated § 36-1-113(i)(7) to substitute “alcohol, controlled substances
or controlled substance analogues” in place of “alcohol and controlled substances.” See 2012 Pub. Acts ch.
848, § 8.
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(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.
As the State concedes in its brief on appeal, analysis of whether it was in the
Children’s best interest to terminate Mother’s parental rights presented a “close” call.
Having found by clear and convincing evidence that Mother committed severe child abuse
by inflicting Davion’s head injury and recognizing Mother’s positive efforts to maintain a
relationship with the Children through visitation and support, the trial court stated the
following in its oral ruling from the bench:
I have it a very close call. And [Mother’s counsel] said that we have to
take chances, we have to take risks, but I can’t take this kind of risk. I can’t
take the risk that there wouldn’t be another fit, I can’t risk that things will be
going as good in the future for [Mother] as they are now.
In its decree, the trial court made the following factual findings regarding the statutory
factors listed in Tennessee Code Annotated § 36-1-113(i):
1. The mother has not made any significant adjustment in her
circumstances since the children came into the custody of the
Department of Children’s Services so as to make the children
safe in her home. Mother has not addressed her own issues so
that she can attend to the needs of the children. Mother has not
acknowledged her role in causing the injury to Davion, and
absent that she cannot prove any adjustment in her
circumstances to make it safe to place her children with her.
2. Mother has not effected any significant adjustment, much less
a lasting adjustment after appropriate and timely services put in
place by the Department of Children’s Services to address the
mother’s parenting. Mother lost control and injured her child.
She has not cooperated with mental health services to attempt to
address the issues which led to her loss of control and [to] try to
ensure that such loss of control does not happen again. Given
the time these children have been in custody and the time
devoted to attempting to resolve the various family issues, it
does not reasonably appear that such an adjustment is possible.
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3. Mother has continued to visit the children with regularity and
respond to their needs during visits, and appears to love her
children.
4. Mother clearly has a meaningful relationship with these
children.
5. Changing caretakers at this point, after about one-half of
Travion’s life and nearly all of Davion’s life would be
detrimental to the children’s emotional, psychological and
medical conditions, especially Davion.
6. Based on the Court’s finding that [Mother] severely abuse[d]
Davion [B.], factor 6 weighs against [Mother].
7. Although the mother’s home is physically safe for the children,
the Court’s concern is mother’s continued drug use during the
time that she had these children, up to the day before the
incident in question. Of further concern is [Mother’s] attempts
to have [D.B.] lie to DCS and law enforcement regarding
[Mother’s] drug usage.
8. Mother’s emotional/mental status weighs against the mother as
she failed to meaningfully participate in counseling, even to
address the trauma associated with losing children to the custody
of the Department of Children’s Services. Her prognosis for
change is poor given her resistance to any sort of disclosure
during counseling. Mr. Ownby’s testimony makes clear that
[Mother] continues to minimize her involvement in causing
Davion’s injuries and continues to deny responsibility. Her
emotional/mental inability to acknowledge her role in causing
the injuries prevents her from making progress to provide a safe
home for the children.
9. Mother has paid support for these children while in the custody
of the Department of Children’s Services.
10. Ending the parent-child relationship will benefit the children as
they will now be able to move on with their lives knowing that
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their mother will not be in their lives and they can unreservedly
attach to appropriate [sic].
The trial court therefore concluded that it was in the Children’s best interest to terminate
Mother’s parental rights. Upon our careful review of the entire record, we agree.
Mother had a history of investigation and monitoring by DCS for marijuana use
during both pregnancies, although she completed outpatient treatment during her second
pregnancy. When Ms. Fox, who testified at the trial, and Detective Damewood went to
D.B.’s apartment after Davion was hospitalized on January 22, 2011, they found a baggie of
marijuana on top of the dresser in Mother’s bedroom. Mother admitted that she smoked
marijuana in the early evening of January 21, 2011. She denied, however, that the marijuana
found in her room belonged to her, insisting it was not on the dresser when she was last in
the apartment. Mother admitted missing an appointment with investigators to take a drug
screen shortly after Davion’s hospital admission. She refused to take a drug screen when
present at court for the preliminary hearing on January 26, 2011. It was undisputed that after
January 2011, Mother consistently submitted to drug screens required by DCS and
consistently tested negative for illegal substances.
Mother acknowledged that she had reviewed transcripts of two telephone calls made
by D.B. to Mother without Mother realizing that investigators were recording the
communications. In one conversation, Mother addressed the presence of drugs by telling
D.B.: “You don’t know where it came from, you don’t know whose it is, and you’ve just
never seen it before. Just please say you don’t know whose it is, you don’t know where it
came from, you don’t think I smoke, please.”
Mother explained that when she began residing with D.B., she had intended a
temporary arrangement while she awaited availability of an apartment of her own. On the
day the Children were removed from her custody, she signed a lease for an apartment. She
had been living in that apartment ever since. Mother reported that she began employment
with Taco Bell in July 2011. By the time of trial, she was working forty to fifty hours a week
for a wage of $7.70 an hour. This wage rate represented one pay raise, and she had been told
she would receive a promotion soon. She indicated that approximately fifty percent of her
paychecks went to pay child support.
Mother further testified that since placement in DCS custody, Travion had been
attending speech therapy appointments, which she regularly arranged her work schedule to
attend. Although Mother initially visited with her children weekly, the visitation later
averaged once every two weeks as DCS reduced the number of visits. Mother established
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a room for the Children in her apartment, which space included two beds, a dresser, a
television, and “a lot of toys.”
Emily Heird testified that she worked as a mental health therapist at Solution Source
and that Mother was referred to her by DCS for counseling regarding the issues surrounding
the Children’s removal. Mother met with her four times in 2011 on June 15, June 28,
September 27, and November 14. The therapist reported that after the June sessions, she
gave Mother “some space” because a court hearing was approaching and Mother wanted to
wait for more counseling until she knew the status of her case. Mother, however, did not
contact Ms. Heird again until Ms. Heird sent Mother a letter on August 22, indicating that
she would have to close the case if she did not hear from Mother within two weeks. Mother
then called Ms. Heird and scheduled the September 27 appointment. Ms. Heird stated that
Mother failed to call or appear for two scheduled appointments in October. She also
cancelled an appointment scheduled for November 1. Mother kept her November 14
appointment, but by the end of November 2011, Ms. Heird discharged Mother from
counseling as unsuccessful when Mother’s insurance terminated coverage. Ms. Heird
stressed that she would have been willing to work with Mother to continue counseling if
Mother had made an effort to do so.
Ms. Heird explained that she was unsuccessful in addressing issues in any depth with
Mother inasmuch as Mother was guarded, reserved, and could not identify goals she wanted
to pursue in counseling. Ms. Heird opined that Mother made appointments to “appear
compliant with DCS requirements.” Mother became more talkative and open in later
sessions, but Ms. Heird said Mother did not address the trauma of having the Children
removed from her custody.
Ms. Foster testified that she is Mother’s aunt and the Children’s great aunt. The
Children were placed in her home as a kinship foster placement at the time DCS removed
them from Mother’s custody. They had resided continuously in her home since that time.
Those living in her home also included her husband and their eleven-year-old daughter.
While Ms. Foster was at work during the week, her mother cared for the children in the
Fosters’ home. She said that both Children were healthy at the time of trial and that Davion
had been released from the care of his neurologist. She reported that when the Children first
came into her home, Davion was small for his age and experienced difficulty sitting up. He
also suffered from acid reflux and projectile vomiting. As Davion developed the ability to
accept various foods, these problems were resolved. By the time of trial, he was on target
for his age and enjoyed a healthy appetite.
Ms. Foster further testified that in addition to Mother’s supervised visitation with the
Children, Mother kept in touch with the Children via telephone calls and text messages sent
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to Ms. Foster and her husband. She noted that both Children recognized Mother’s
photograph on Ms. Foster’s phone when Mother would call. They enjoyed talking to Mother.
She felt that the Children had grown to love her family and that Davion was “definitely
attached” to them. She opined that Travion remembered living with his mother and had a
greater connection to Mother.
Ms. Foster further explained that everyone in her immediate family enjoyed having
the Children in the home and that it had become “natural” to have the Children reside there.
When asked if she and her husband desired to adopt the Children if they became available
for adoption, Ms. Foster answered, “Absolutely.” She asserted that if she and her Husband
adopted the Children, it would be best for the Children to maintain some contact with
Mother.
The Children’s maternal grandmother (“Grandmother”) testified that Mother and the
Children lived with her from November 2010 through part of January 2011 before Mother
moved in with D.B. Grandmother said that at the time of trial, Mother had a two-bedroom
apartment arranged as though the Children were present all the time. The home was stocked
with toys, diapers, and clothing for the Children. Grandmother, present during several visits
between Mother and the Children at Mother’s house, described a typical visit:
[T]he boys come in and they act like they’re home. They take off their shoes,
she feeds them, she plays with them, she teaches them things. I’ve seen her
correct them or set them in time-out, and she’ll explain to them if they’re doing
something they’re not supposed to do. They’re very, very attached to their
mother.
Grandmother denied ever having observed Mother roughly discipline the Children or having
heard Mother threaten to hurt the Children in any way.
Carlos R. Ownby testified that he was the Pastor at Bakertown Ministries, which
assisted residents of subsidized housing. He had known Mother since she moved into
Bakertown Ministries in January 2011. After Mother had been at Bakertown for about two
months, she began assisting with the ministry by helping to prepare food, clean up, and care
for children. Pastor Ownby said he was impressed with Mother’s maturity and was glad to
have her help in chaperoning twenty-three children at a vacation Bible school. He observed
Mother during two visits with the Children at Mother’s apartment and indicated he noticed
a close, loving bond between Mother and the Children.
Pastor Ownby also testified that Mother told him the Children were removed because
of an accident when Travion pulled Davion off the couch. He said he understood that “there
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was some question as to whether the Department of Children’s Services felt like she took the
appropriate action at the appropriate time.” When asked if he would still have confidence
in allowing Mother unsupervised access to children in his ministry if he were to learn that
the court found Mother to have committed severe child abuse, Pastor Ownby said he would.
He had observed no indication that Mother was using drugs while assisting in his ministry.
Jessica Hume testified that she was the DCS case manager for the Children until
accepting a different position. She remembered speaking with Mother in July 2011
concerning a possible trial home placement. As explained by Ms. Hume, the “lingering
issue” preventing trial home placement was that Mother did not successfully complete
individual therapy. Ms. Hume supervised visits between Mother and the Children first at the
DCS office and then at Mother’s apartment. She said Mother regularly attended the visits
and provided appropriate snacks and activities. She noted that the Children appeared happy
with Mother and that Travion would run to greet Mother upon arrival. Ms. Hume reported
personally administering drug screens to Mother “a good handful of times,” with Mother
never failing the screens.
Leigh Anne Goldstine testified that she was a clinical therapist with Foothills Care,
Inc., which office received a referral to provide therapeutic visitation for Mother and the
Children. According to a court report she had prepared, dated November 9, 2011, Mother
and the Children visited twenty-five times between when the case was opened on April 15,
2011, and the date of the court report. Mother began with sixteen visitation hours a month.
This was subsequently decreased to ten hours monthly, followed by six hours a month at
DCS’s direction. Ms. Goldstine said that the visits were positive experiences, with the
Children eager to see Mother. Mother was always prompt and was well prepared with many
snacks and activities. She said Mother created a regular routine without being prompted.
Mother disciplined appropriately by redirecting attention and using “time out” when needed.
Ms. Goldstein did not perform a formal bonding assessment. She indicated this was because
she felt it evident from the beginning that Mother and the Children were bonded.
At the close of the trial, Stacy Eckard, the guardian ad litem appointed by the trial
court (“GAL”), opined that she believed termination of Mother’s parental rights was in the
best interest of the Children. The GAL explained that she had been involved with the
Children before their coming into protective custody, first as Travion’s GAL and then as the
GAL for both Children. The GAL agreed with witnesses who testified that Mother was
appropriate with and attentive to the Children and that Mother believed it her responsibility
to care for them. The GAL was convinced, however, that the State had met its burden of
showing severe child abuse and that Mother had failed to make any adjustment to ensure that
no such incident would happen again. Of concern was Mother’s failure to address her own
mental and emotional state in therapy. The GAL expressed additional concern regarding
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Mother’s past marijuana use. She noted that the Children’s pre-adoptive home was with
relatives who had stated their intention of maintaining a relationship between Mother and the
Children.
We note, as did the trial court, that some factors weigh in favor of maintaining
Mother’s parental relationship with the Children. Several witnesses for Mother, including
the Children’s maternal grandmother, a prior DCS case manager, and a therapist who
provided therapeutic visits between Mother and the Children, testified that Mother and the
Children enjoyed a strong parent-child bond. Mother furthered this relationship after the
Children were removed from her custody by being attentive and well prepared during
visitation. Mother also maintained appropriate housing and employment, enabling her to pay
child support, which she did.
The factors weighing against Mother and in favor of terminating her parental rights,
however, pose an overriding concern that the Children would not be safe in Mother’s future
care. The circumstance causing the Children to be removed from Mother’s custody was the
traumatic injury to Davion, which we have concluded the trial court properly found to be the
result of severe child abuse by Mother. By failing to address both her role in causing
Davion’s injury and any underlying mental or emotional issues that caused her to resort, even
in a moment of frustration, to injuring her child, Mother has failed to show significant and
lasting adjustment in her circumstances that would ensure the safety of the Children.
Although Mother demonstrated that she consistently tested negative for drug use after the
preliminary hearing, her history of marijuana use when pregnant, admitted marijuana use
hours before Davion’s January 2011 hospitalization, and attempt to persuade D.B. to lie
about such use all weigh against her ability to provide a safe environment for the Children
as well. The State presented undisputed testimony that the Children were healthy, happy, and
well adjusted in their kinship foster home. Ms. Foster testified that she and her husband
wished to adopt the Children. As the trial court determined, changing caretakers at this point
in the Children’s lives, after having lived with the Fosters since ages sixteen months and six
months, respectively, would be detrimental to their emotional, psychological, and medical
conditions.
On appeal, Mother relies on In re D.P.M., S.H., & Y.M.P., No. M2005-02183-COA-
R3-PT, 2006 WL 2589938 at *12-14 (Tenn. Ct. App. Sept. 8, 2006), to support her position
that termination of a mother’s parental rights due to a finding of severe abuse is inconsistent
with the children’s best interests where a close bond exists between the mother and children.
In In re D.P.M, this Court considered, in addition to the close bond between the mother and
child, the child’s therapist’s opinion that the child’s connection to her nuclear family was of
utmost importance to the child. Id.; see also In re D.P.M., S.H., & Y.M., No. M2007-02741-
COA-R3-PT, 2008 WL 4693725 (Tenn. Ct. App. Oct. 23, 2008) (affirming the trial court’s
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second ruling terminating the mother’s parental rights as in the best interest of the children).
We do not find Mother’s reliance on In re D.P.M. (2006) to be persuasive when applied to
the facts of the case at bar.
We conclude that the evidence does not preponderate against the trial court’s
determination, by clear and convincing evidence, that terminating Mother’s parental rights
was in the best interest of the Children.
VI. Conclusion
The judgment of the trial court terminating the parental rights of Mother is affirmed.
Costs on appeal are taxed to the appellant, Samantha B. This case is remanded to the trial
court, pursuant to applicable law, for enforcement of the trial court’s judgment and collection
of costs assessed below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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