In Re Angelleigh R. ( 2021 )

05/19/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 1, 2021
IN RE ANGELLEIGH R.
Appeal from the Circuit Court for Marshall County
No. 2019-CV-50 M. Wyatt Burk, Judge
___________________________________
No. M2020-00504-COA-R3-JV
___________________________________
This appeal stems from the circuit court’s finding that a child was dependent and neglected.
In particular, Mother appeals the trial court’s finding that the child was a victim of severe
abuse and educational neglect. We reverse the trial court as to both determinations.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which W. NEAL
MCBRAYER, J., joined, and THOMAS R. FRIERSON, II, J., filing a separate concurring and
dissenting opinion.
William D. Cartwright, Murfreesboro, Tennessee, for the appellant, Amanda D.B.
Herbert H. Slatery, III, Attorney General and Reporter; Stephanie Reevers, Deputy
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
Respondent/Appellant Amanda D.B. is the parent of the child at issue, born in
February 2012. In August 2018, Petitioner/Appellee the Tennessee Department of
Children’s Services (“DCS”) became involved with the child due to concerns that the child
had fleas in her hair.1 That case was eventually closed. In October 2018, however, another
1
It does not appear that this was Mother’s first encounter with DCS. Mother testified that a prior
landlord had evicted her due to so many visits by DCS, and Mother admitted that she had several older
children that were not in her custody.
issue arose that led to the DCS involvement at issue here. Specifically, on October 17,
2018, an incident occurred at the child’s school that led DCS to begin an investigation into
whether the child had been sexually abused. According to the referral from the child’s
school, the previous day the child had her hands down the front of her pants at school.
When asked why she was doing that, the child stated that she was “hurting,” that it was
“red down there” and that Mother’s boyfriend, James M. (“Boyfriend”), “was messing with
her down there.” When questioned, the child made a similar disclosure to a second teacher
and a DCS investigator that Boyfriend had poured hand sanitizer “down there.” The child
also informed a teacher and the DCS investigator that Boyfriend threatened to “put hot
sauce in my eyes, he don’t like me anymore and he told me to go away.” The investigator
attempted to interview Mother the same day, but Mother did not return the investigator’s
request for a phone call left at Mother’s address on file with the school.
Two things happened on October 19, 2018, the order of which is not clear from the
record. One, Mother removed the child from public school in favor of home-schooling.
Mother later claimed that the removal was not at all related to the DCS referral, as she did
not know about the investigation at the time of the removal. Mother testified that due to
the child’s Attention Deficit Hyperactivity Disorder (“ADHD”) diagnosis and
developmental delays, the school wanted the child to attend only half-days. Mother
testified that she did not believe that this arrangement was in the best interest of the child,
so she instead chose to home-school the child.
Two, the DCS investigator was able to interview Mother. Mother informed the
investigator that the child had resided with her father in California for the bulk of the
summer of 2018. Around August 2018, the father told Mother that the child had informed
him that someone named “Joker” had touched her inappropriately. Mother testified that
she did not know anyone called “Joker” and that she took the child to the doctor on August
21, 2018, following the disclosure. According to Mother, she asked the doctor if there were
any signs that the child had been sexually abused and was informed there were no signs to
confirm that any abuse occurred.2 Records from that visit, however, do not indicate that
sexual abuse was in any way discussed during the visit.
During the October 19 interview, Mother agreed to bring the child for a forensic
interview the following Monday. Mother also agreed to stay with maternal grandmother
and keep the child away from Boyfriend over the weekend. Later, however, Mother refused
to schedule the forensic interview, and an ex parte court order was entered mandating it on
October 22, 2018.3 Mother later testified that she simply wanted additional time to obtain
2
DCS disputed that any doctor could rule out sexual abuse based on a single physical exam. The
disclosure of abuse that occurred in August 2018, however, is not at issue in this case. First, the alleged
abuse occurred outside of Mother’s care. Second, DCS does not assert in its brief that this alleged disclosure
provides the basis for the finding of severe abuse in this case. Instead, DCS asserts only that Boyfriend
perpetrated abuse against the child. As such, these allegations are largely irrelevant to the case-at-bar.
3
Mother’s counsel also filed a notice of appearance on this date.
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a lawyer. The investigator and police also attempted to interview Boyfriend, but he
declined to be interviewed.
A videotaped forensic interview with the child occurred on or about October 22,
2018. The child is somewhat difficult to understand in the video. It is clear, however, that
the child repeatedly informed the interviewer that Boyfriend had put hand sanitizer on her
private area. The child’s gestures made clear that she was not referring to her toe, as she
pointed specifically to her groin area and indicated that Boyfriend pulled down her pants
to do so. The child stated that she told Boyfriend no, but that he performed the act anyway,
while wearing gloves. The child further stated that Boyfriend also poured hot sauce on that
area. The child initially said that the hand sanitizer incident happened once, but then goes
on to mention the hand sanitizer and hot sauce incidents as if they perhaps happened
together, variously describing them as having happened on “Friday, Saturday, and 100
days,” “Friday, Saturday, and Sunday,” and “100 times.” Upon being asked multiple times
by the forensic interviewer only about the hand sanitizer incident (not the hot sauce), the
child explained that it occurred during the night while Mother was sleeping. The child later
stated, however, that Mother woke up and she informed Mother of the incident. The child
responded variously that Mother did not care and that Mother “ground” Boyfriend and put
hot sauce in his eyes. The child discussed the hot sauce allegations at times while literally
standing on her head. The child also stated that the police said that someone touched her,
but she stated that no one touched her.
The child’s allegations against Boyfriend, however, were not limited to this possibly
single incident. The child also stated that Boyfriend had stomped on her stomach during an
incident in which she had vomited popcorn.4 Moreover, the child claimed that Boyfriend
killed eighteen cats, as well as a “human.” According to the child, she had seen this
deceased “human” buried in the ground of her neighbor’s home with no head, no feet, no
hands, “no body, only the body.” The child claimed that she had called police on Boyfriend
for this murder and that he had been arrested. The child also stated that her teachers were
going to jail because they were not pretty and they kicked her.
Based on what DCS deemed the consistency of the allegations from the child, DCS
substantiated the allegations of sexual abuse. On October 24, 2018, DCS filed a petition
for an ex parte restraining order and injunction prohibiting contact between the child and
Boyfriend in the Marshall County Juvenile Court (“the juvenile court”). This petition also
specifically asked that the child be declared dependent and neglected and the victim of
severe abuse.5 The juvenile court entered an ex parte restraining order on the same day;
4
It is unclear whether the vomiting occurred before or after the alleged stomping.
5
As noted infra, DCS later filed an amended dependency and neglect petition. We note, however,
that this petition for an ex parte order is the only pleading specifically asking that the child be declared a
victim of severe abuse. It is unclear if DCS intended this petition to serve as the dependency and neglect
petition, or if another petition was omitted from the record on appeal. In any event, Mother raises no
argument that she was not properly on notice regarding the allegations of dependency and neglect or that
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Mother retained custody, but was ordered not to permit contact between Boyfriend and the
child. On October 25, 2018, the juvenile court entered an order appointing a guardian ad
litem for the child.
After Mother waived the preliminary hearing, on October 29, 2018, the juvenile
court entered an order finding probable cause of dependency and neglect. The order further
provided that Mother was to obtain trauma counseling for the child. Mother and the child
were to reside with maternal grandmother, and Boyfriend was again prohibited from having
contact with the child.
By February 15, 2019, Mother had also not signed necessary releases to allow DCS
to obtain records from the child’s therapy, nor had Mother enrolled the child in trauma
therapy. Mother claimed that the child was already in therapy and that there was a delay
from the trauma therapy provider in getting the child an appointment. DCS therefore filed
an amended petition for dependency and neglect on February 28, 2019, alleging that
Mother was not properly providing the child with medical care.
Following a home visit, on March 13, 2019, DCS filed a petition for an ex parte
restraining order to remove the child from Mother and place her in DCS custody. The
petition alleged that Mother was no longer residing with maternal grandmother, but had
moved back in with Boyfriend. The petition further alleged that the child, however,
remained at maternal grandmother’s home and was suffering from environmental neglect.
Additionally, the petition alleged (1) educational neglect because Mother was not properly
home-schooling the child; (2) physical abuse due to alleged discipline imposed by step-
grandfather; and (3) medical neglect as Mother had still not enrolled the child in the proper
trauma therapy. The juvenile court entered a protective custody order on March 14, 2019,
placing the child in DCS custody and awarding Mother supervised visitation.
A second preliminary hearing was held on March 15, 2019. On April 9, 2019, the
juvenile court again found probable cause that the child was dependent, abused, or
neglected. The juvenile court further ruled that custody would remain with DCS, as Mother
admitted she left the child with maternal grandmother without a power of attorney to allow
the child to be placed in school. The juvenile court further found that Mother was absent
from the child’s life for a period of weeks due to the birth of a new baby, and that there
was environmental and educational neglect, as well as physical abuse, as alleged in the
petition. A permanency plan was created in April 2019 that allowed Mother no less than
four hours of therapeutic supervised visitation per month. The goal of this permanency plan
was “return to parent.”
Bifurcated adjudicatory hearings were then held on the dependency and neglect
petition—one on the allegations of neglect on May 13, 2019, and another on severe abuse
this case was not properly initiated.
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on June 3, 2019. On June 28, 2019, the juvenile court entered an order of adjudication and
disposition, finding the child had been subjected to environmental and educational neglect
when Mother had left the child in the care of her maternal grandmother and failed to ensure
that she was provided appropriate care. The juvenile court also determined that there was
clear and convincing evidence of severe abuse, noting that the child had been “consistent
in disclosures of sexual abuse to four different individuals,” who the court found to be
credible. The juvenile court further ruled that DCS met its burden to show, by clear and
convincing evidence, that Boyfriend “sexually abused” the child. The juvenile court
therefore ordered that the child would remain in DCS custody, with Mother permitted
visitation. The juvenile court’s order further provided that
There shall be no contact either direct or indirect, between the adult,
[Boyfriend] and the minor child. The adult and parents are advised that if this
restraining order is violated that they can be held in contempt, can have
custody of the child removed, and can be incarcerated for a period up to one
(1) year. This restraining order shall remain in effect until the minor child
reaches the age of eighteen (18) or until this order is modified.
On July 3, 2019, Mother appealed this order de novo to the Marshall County Circuit
Court (“the trial court”). The case was heard on January 30, 2020. At the time of trial, the
child was apparently residing at a residential treatment school. The video of the forensic
interview was played for the court, and several witnesses testified, including Mother,
Boyfriend, the child’s former teachers, the child’s former counselor, an employee of the
child’s current school, the DCS investigator, and the case worker. Mother and Boyfriend
consistently claimed that the child was known to fabricate stories and was not being truthful
when she made the allegations against Boyfriend. Indeed, the testimony was undisputed
that the child suffered from developmental delays, which Mother claimed placed her
functioning well below that of a child her age.6 And the DCS investigator agreed that the
child has “a propensity to make up stories,” which she stated was not unusual for a six-year
old child suffering from developmental delays.7 Although police were involved in this
investigation, there was no proof of any criminal charges against Boyfriend related to this
incident or any other.
Mother and Boyfriend also pointed to the fact that the child had undisputedly been
diagnosed with pinworms in the time around when she made the sexual abuse disclosures.8
There was no dispute that pinworms cause discomfort in the private region, but the teachers
6
Specifically, in an intake form for therapy, Mother indicated that the child was “closer to 3-4 yr
old mentally.”
7
The DCS investigator further agreed that the child “struggles with the ability to distinguish actual
events from imagination.”
8
Both teachers testified that the child had been diagnosed with pinworms prior to the October 17
incident, where she had her hands down the front of her pants at school. There was no evidence presented
as to how long such a condition would affect the child.
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testified that the child typically put her hands down the back of her pants for pinworm
issues, not the front. Moreover, the evidence was undisputed that the only treatment
prescribed to the child for the pinworms was oral medication. Mother and Boyfriend
testified, however, that they used hand sanitizer to clean a cut on the child’s toe at the time
of the disclosure, and the child’s former teachers confirmed that the child had a cut on her
toe at the time of the disclosure. The child’s former teachers further testified that they had
never witnessed another teacher kick the child and obviously denied that they had kicked
the child. Still, the former teachers testified that they believed the child’s allegations against
Boyfriend.
The proof showed that Mother did enroll the child in therapy with David Saunders
at LifeCare Family Services in December 2018. Mother claimed that the child attended this
therapy once a week for several months.9 According to Mr. Saunders, however, he
performed an initial intake in December 2018 and then conducted five sessions with the
child in January and February 2019. There was some dispute, however, as to whether this
therapy was trauma-focused. Mr. Saunders testified to his understanding that the child had
previously been diagnosed with Autism Spectrum Disorder, ADHD, and Pica.10 Mr.
Saunders confirmed that Mother informed him that there was some concern about sexual
abuse during the sessions, but it does not appear that Mother mentioned this issue during
the initial intake. It is also unclear how specific Mother was about the allegations. In the
few visits that occurred, Mr. Saunders did not see any obvious signs of sexual abuse, and
the child did not make any disclosures to him of abuse. According to Mr. Saunders, those
issues would have been delved into in later sessions, which did not occur following the
removal of the child. Mr. Saunders also recounted a session where the child claimed to be
a police officer and when asked if she was pretending or if she was “really, really a
policeman,” the child said she was “really, really a policeman.”
An employee from King’s Daughters’ School, Melissa Urvan, where the child was
currently enrolled, also testified. Ms. Urvan was in charge of supervising Mother’s
visitation with the child and testified that the child made no disclosures of abuse to her;
rather, the child mentioned Boyfriend only twice to her, once stating that he did not hurt
her and once stating that she missed him. After the child was removed from Mother’s
custody, it appears that the child was no longer required to attend any specific trauma
9
Mother testified that the child was attending regular therapy appointments with a different
provider prior to the therapy with Mr. Saunders. Mother testified, however, that DCS instructed Mother to
enroll the child in trauma-specific therapy. Mother later admitted that the child was first treated by Dr.
Saunders in December 2018. The child, of course, was removed from Mother’s custody in March 2019,
about four months later.
10
Pica is generally defined as “a craving for and eating of unnatural substances such as chalk,
ashes, bones, etc. generally occurring in instances of nutritional deficiency.” Dunson v. Friedlander Realty,
369 So. 2d 792, 795 (Ala. 1979); see also Jackson ex rel. Hinkle v. Allegheny Valley Sch., No. 3042 EDA
2014, 2015 WL 9264664, at *1 (Pa. Super. Ct. Dec. 18, 2015) (“Pica is defined as a tendency or craving to
consume substances that have no nutritional value.”).
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therapy, and went back to generalized therapy. Ms. Urvan further testified that the child
had not exhibited any “sexually reactive behaviors” in her interactions with the child.
At the conclusion of the proof, the trial court issued an oral ruling that the child was
dependent and neglected and severely abused by Boyfriend. The trial court later entered a
written order to this effect on March 6, 2020. Therein, the trial court made the following
relevant findings:
In considering the testimony of the witnesses here today, the court is
convinced by the witnesses and the video of the forensic interview that the
sex abuse occurred. The court was able to personally witness the demeanor
of the witnesses, their facial expressions, and the often prolonged pauses
between the questions posed and the answers given, believing that the
teachers and the child were convincing, and that this court will credit their
testimony that this event did in fact occur.
The child was able to specifically articulate the manner in which this
sexual act occurred and the court finds clearly and convincingly it did, in
fact, occur. The child’s frequent touching of this area was further evidence
of this fact. When the question was posed to her; she was consistent in
answering yes.
Thus, the trial court found that the child was the victim of severe abuse by Boyfriend. The
trial court further ruled that educational neglect existed because Mother’s efforts to home-
school the child were “substantially lacking.” The trial court declined, however, to find
environmental neglect because it found the issues underlying that allegation had been
remedied. As to disposition, the trial court ruled that custody would “remain as ordered by
the juvenile court,” and specifically ordered that Boyfriend would have no contact with the
child. Mother timely appealed to this Court.
II. ISSUES PRESENTED
Mother raises the following issues, as taken from her brief and slightly restated:
1. Whether the trial court erred by finding clear and convincing evidence of severe
abuse.
2. Whether the trial court erred in finding that the child is dependent and neglected due
to educational neglect.
3. Whether the trial court erred by not returning the child to Mother’s care and custody.
DCS designates no additional issues, but merely restates the issues raised by Mother.
III. STANDARD OF REVIEW
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This Court has previously explained the standard of review applicable in an appeal
from a dependency and neglect proceeding as follows:
A parent’s right to the care and custody of his or her child is among
the oldest of the liberty interests protected by the due process clauses of the
federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65, 120 S.
Ct. 2054, 147 L. Ed. 2d 49 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578–79
(Tenn. 1993); Ray v. Ray, 83 S.W.3d 726, 731 (Tenn. Ct. App. 2001).
Although this right is fundamental, and superior to claims of the government
and other persons, it is not absolute. State v. C.H.K., 154 S.W.3d 586, 589
(Tenn. Ct. App. 2004). The right continues without interruption only as long
as a parent has not relinquished it, abandoned it, or engaged in conduct
requiring its limitation or termination, Blair v. Badenhope, 77 S.W.3d 137,
141 (Tenn. 2002), such as when the child is found to be dependent and
neglected, see Tenn. Code Ann. § 37-1-130(a), or when a parent is found to
have engaged in severe child abuse, see Tenn. Code Ann. § 37-1-130(c).
The fact a child is dependent and neglected and the fact a parent has
engaged in severe child abuse must be established by clear and convincing
evidence. Tenn. Code Ann. § 37-1-129(c); Tenn. Dep’t of Children’s Servs.
v. M.S., No. M2003-01670-COA-R3-CV, 2005 WL 549141, at *10 (Tenn.
Ct. App. Mar. 8, 2005) (holding that despite the lack of a statutory
requirement that severe child abuse be shown by clear and convincing
evidence, due to the consequences of such a finding the clear and convincing
standard must be applied). For the evidence to be clear and convincing, the
evidence must eliminate any serious or substantial doubt about the
correctness of the conclusions to be drawn from the evidence. In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Hodges v. S.C. Toof &
Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). The evidence should produce a
firm belief or conviction as to the truth of the allegations sought to be
established. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007); In re
Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct. App. 2006). In contrast to
the preponderance of the evidence standard, clear and convincing evidence
should demonstrate that the truth of the facts asserted is “highly probable” as
opposed to merely “more probable” than not. In re M.A.R., 183 S.W.3d 652,
660 (Tenn. Ct. App. 2005) (quoting In re C.W.W., 37 S.W.3d 467, 474
(Tenn. Ct. App. 2000)).
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, this court will afford great weight to those credibility
determinations, and will not reverse such determinations absent clear
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evidence to the contrary. See McCaleb v. Saturn Corp., 910 S.W.2d 412,
415 (Tenn. 1995).
Whether 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. See In
re the Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007) (holding in a
termination of parental rights case that “[a]s a question of law, the trial
court’s ruling that the facts of this case sufficiently support the termination
ground of willful abandonment are reviewed de novo with no presumption
of correctness.”); see also In re Valentine, 79 S.W.3d at 548 (holding that
the question of substantial noncompliance with the requirements of a
permanency plan was a question of law reviewed de novo with no
presumption of correctness). To the extent the trial court made findings of
fact in support of the ultimate issues, we review the factual findings pursuant
to Tenn. R. App. P. 13(d), de novo with a presumption of correctness unless
the evidence preponderates otherwise. In re A.T.P., No. M2006-02697-
COA-R3-JV, 2008 WL 115538, at *4 (Tenn. Ct. App. Jan. 10, 2008) (holding
that findings of fact in a dependency and neglect action for severe child abuse
are “presumed to be correct unless the evidence preponderates against
them”); see also In re the Adoption of A.M.H., 215 S.W.3d at 808–09; In re
M.L.P., 228 S.W.3d at 143–44. However, the trial court’s conclusions of law
concerning the ultimate issues are reviewed de novo without a presumption
of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001); see also In re A.T.P., 2008 WL 115538, at
*4. Therefore, this court will review the trial court’s specific findings of fact
in support of its ultimate conclusions de novo, pursuant to Tenn. R. App. P.
13(d), with a presumption of correctness; however, we will review those
conclusions of law, that the parents engaged in severe child abuse and that
the children are dependent and neglected, de novo with no presumption of
correctness.
In re H.L.F., 297 S.W.3d 223, 232–34 (Tenn. Ct. App. 2009).
IV. ANALYSIS
Here, the trial court made two findings that are at issue in this appeal: (1) that the
child was a victim of severe abuse; and (2) that the child was dependent and neglected due
to educational neglect. Mother appeals both findings. Tennessee Code Annotated section
37-1-102 contains various definitions for a “[d]ependent and neglected child.” Relevant
here, a child may be dependent and neglected if she is “unlawfully kept out of school” or
“suffering from abuse or neglect[.]” Tenn. Code Ann. § 37-1-102(b)(13)(C) & (G); see
also Tenn. Code Ann. § 37-1-102(b)(1) (stating that “abuse” exists “when a person under
the age of eighteen (18) is suffering from, has sustained, or may be in immediate danger of
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suffering from or sustaining a wound, injury, disability or physical or mental condition
caused by brutality, neglect or other actions or inactions of a parent, relative, guardian or
caretaker”). We begin with the trial court’s finding that the child was a victim of severe
abuse.
A. Severe Abuse
Under Tennessee Code Annotated section 37-1-129,
If the petition alleged the child was dependent and neglected as defined in §
37-1-102(b)(13)(G), or if the court so finds regardless of the grounds alleged
in the petition, the court shall determine whether the parents or either of them
or another person who had custody of the child committed severe child abuse.
Tenn. Code Ann. § 37-1-129(b)(2).11 The statutory definition of severe child abuse
applicable to dependency and neglect proceedings is found in Tennessee Code Annotated
section 37-1-102(b)(27), which provides in relevant part:
“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;
(ii) “Serious bodily injury” shall have the same meaning given in §
39-15-402(c);
(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
11
Although this statute speaks of parents or those with custody, neither party argues in this case
that a severe abuse finding was not proper against Boyfriend because he is not the child’s parent and was
not her legal guardian. Boyfriend lived with Mother at the time of the allegations and participated in the
child’s care. Indeed, the definition of “abuse” provides that it may be perpetrated by a caregiver, see Tenn.
Code Ann. § 37-1-102(b)(1), and the definition of severe abuse does not limit the abuse to parents or legal
custodians. See Tenn. Code Ann. § 37-1-102(b)(27); see also Tenn. Code Ann. § 37-1-102(b)(4) (defining
a caregiver as, inter alia, a person living with the child who provides care for the child). As such, we have
previously upheld findings of severe abuse against stepparents in similar situations. See, e.g., In re Madison
M., No. M2013-02561-COA-R3-JV, 2014 WL 4792793 (Tenn. Ct. App. Sept. 25, 2014); In re Melanie T.,
352 S.W.3d 687 (Tenn. Ct. App. 2011). Moreover, Tennessee law makes clear that “[n]o 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.” Tenn. Code Ann. § 37-1-130(c) (emphasis added). There is no dispute in this
case that Mother and Boyfriend share a residence.
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protect a child from such conduct;
(C) The commission of any act towards the child prohibited by § 39-13-
309, §§ 39-13-502 -- 39-13-504, § 39-13-515, § 39-13-522, § 39-13-527, §
39-13-531, § 39-13-532, § 39-15-302, § 39-15-402, or § 39-17-1005 or the
knowing failure to protect the child from the commission of any such act
towards the child; . . . .
Mother points out that the trial court failed to specify which of the above subsections
its was relying on in finding severe abuse in this case. And Mother notes that this Court
has previously vacated a termination order when the trial court did not designate the
subsections under which it found sexual abuse. See In re S.S.-G., No. M2015-00055-COA-
R3-PT, 2015 WL 7259499, at *11 (Tenn. Ct. App. Nov. 16, 2015) (“Where the statute
provides several possible definitions for a ground, the trial court must specify the exact
definition that it relies upon in reaching its ultimate conclusion.”). In reaching this result,
we relied on the specific language of the termination statute requiring that trial courts make
“specific findings of fact and conclusions of law” as well as precedent that failure to
comply with that mandate “‘affects the viability of the appeal.’” Id. at *11 (quoting In re
G.N.S., No. W2006-01437-COA-R3-PT, 2006 WL 3626322, at *6 (Tenn. Ct. App. Dec.
13, 2006)).
We have not taken the same position, however, in cases involving only dependency
and neglect. Rather, in a similar case wherein the trial court failed to specify which
subsection of the dependency and neglect statute it deemed applicable, we explained that
[i]nstead of remanding the case to the Circuit Court for appropriate
conclusions of law based on the statutory definition of “dependent and
neglected child,” we deem it prudent to look at the facts as found by the
Circuit Court and determine whether they amount to clear and convincing
evidence that Son is a dependent and neglected child under any subsection
of Tennessee Code Annotated § 37-1-102(b)(12).[12]
In re K.A.P., No. W2012-00281-COA-R3-JV, 2013 WL 6665012, at *8 (Tenn. Ct. App.
Dec. 17, 2013).
We conclude that the record on appeal provides a sufficient basis for us to conduct
meaningful appellate review. Here, the trial court’s final order expressly finds that the child
was a victim of sexual abuse. In our view, this finding clearly implicates subsection (C),
which provides for a finding of severe abuse when an individual is found to have committed
an act prohibited by a number of our criminal statutes. These statutes uniformly involve
crimes of a sexual nature. Moreover, the juvenile court’s final order expressly cited this
12
The definition of a dependent and neglected child has been renumbered to subsection (13) since
the decision in In re K.A.P.
- 11 -
subsection in finding severe abuse.13 As such, we conclude that the proper focus in this
case is whether severe abuse was shown under subsection (C). Moreover, we note that there
appears to be little dispute that that the child’s allegations, if true, are prohibited by one or
more of the statutes cited in that subsection. See, e.g., Tenn. Code Ann. § 39-13-504
(involving the crime of aggravated sexual battery).14 Rather, Mother argues that DCS
presented less than clear and convincing proof that the child’s claims were true.
Before addressing that issue, however, we must first consider a threshold issue
raised by DCS. Specifically, DCS argues in this case that Mother lacks standing to dispute
the severe abuse finding, as there was no such finding against Mother. DCS points out that
both Mother and Boyfriend were parties to the juvenile court proceedings, wherein the
juvenile court found only that Boyfriend had perpetrated severe abuse against the child; the
juvenile court made no finding that Mother was also guilty of severe abuse. See Tenn. Code
Ann. § 37-1-129(b)(2) (directing the trial court to determine if the parents, one parent, or
another person with custody severely abused the child). The trial court came to the same
conclusion in the de novo appeal of the dependency and neglect proceeding. While Mother
filed a brief with this Court, Boyfriend has chosen not to do so.15 As such, DCS contends
that the severe abuse finding is final as to Boyfriend, and that Mother, who was not named
a perpetrator of severe abuse, has no standing to challenge the severe abuse finding.
13
Despite this notice that subsection (C) was at issue, Mother cites only subsections (A) and (B) in
her appellate brief. In particular, she argues that DCS failed to present necessary evidence as to either
subsection. First, she notes that there was no evidence of a likely bodily injury to the child, precluding
application of subsection (A). She further argues that subsection (B) cannot be utilized because no expert
proof was introduced. We agree that these subsections are inapplicable. But that does not end the inquiry
as to whether DCS presented clear and convincing evidence to support application of subsection (C), as this
subsection does not expressly require either expert proof or a likely bodily injury.
14
This statute provides as follows:
(a) Aggravated sexual battery is unlawful sexual contact with a victim by the
defendant or the defendant by a victim accompanied by any of the following
circumstances:
(1) Force or coercion is used to accomplish the act and the defendant is armed with
a weapon or any article used or fashioned in a manner to lead the victim reasonably to
believe it to be a weapon;
(2) The defendant causes bodily injury to the victim;
(3) The defendant is aided or abetted by one (1) or more other persons; and
(A) Force or coercion is used to accomplish the act; or
(B) The defendant knows or has reason to know that the victim is mentally
defective, mentally incapacitated or physically helpless; or
(4) The victim is less than thirteen (13) years of age.
(b) Aggravated sexual battery is a Class B felony.
Tenn. Code Ann. § 39-13-504.
15
It does not appear that Boyfriend was represented by counsel in either the juvenile court or trial
court proceedings.
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We have some concerns that DCS has waived this argument. Importantly, DCS
failed to designate this argument as an issue on appeal. Arguments not designated as issues
on appeal are generally waived in this Court. See State v. Freeman, 402 S.W.3d 643, 653
(Tenn. Ct. App. Oct. 16, 2012) (“Generally, an issue argued in the body of the brief, but
not designated as an issue will be considered waived”); State v. Deberry, No. W2004-
00018-CCA-R3-CD, 2004 WL 2808908, at *6 (Tenn. Crim. App. Dec. 7, 2004) (“Because,
however, the state failed to raise the issue of standing in the trial court, it is our view that
the issue is waived on appeal.”). But see In re Joseph F., 492 S.W.3d 690, 696 (Tenn. Ct.
App. 2016) (holding that the question of who may bring a termination petition is an issue
of statutory standing that cannot be waived).
In any event, we cannot conclude that Mother lacks standing to dispute this finding.
It is true that while Boyfriend was a party to the juvenile court proceedings, he filed no
notice of appeal of the juvenile court’s judgment. But the law clearly provides that
Boyfriend was a party to the de novo hearing in circuit court. See Tenn. R. Prac. & Proc.
118(i) (“All parties to the juvenile court proceeding shall be parties to the de
novo hearing.”); see also Tenn. R. Prac. & Proc. 1(b) (stating that the Tennessee Rules of
Juvenile Practice and Procedure “apply to . . . dependent and neglect proceedings”).
Still, Boyfriend has chosen not to file a brief in this appeal, and “[a]s a general rule,
. . . a party lacks standing to appeal an order entered against a co-party who has elected not
to appeal that order.” Clark v. Perry, No. 02A01-9704-CH-00080, 1998 WL 34190562, at
*7 (Tenn. Ct. App. Mar. 19, 1998). We must conclude, however, that the unique
circumstances of this case demonstrate Mother’s standing.
As we have explained,
Under our case law only an aggrieved party has a right to prosecute an
appeal. An aggrieved party has been defined as one having an interest
recognized by law which is injuriously affected by the judgment, or whose
property rights or personal interest are directly affected by its operation[.]
Under this test, Southern Fire of course would not be aggrieved unless, as
has already been noted, it would be bound by the Court’s finding of fact . . .
.
Koontz v. Epperson Elec. Co., 643 S.W.2d 333, 335 (Tenn. Ct. App. 1982) (citations
omitted). There can be no dispute that a dependency and neglect and/or severe abuse action
directly affects Mother’s fundamental liberty interest in the care and custody of her child.
See Troxel, 530 U.S. at 65. Although Mother was not named the perpetrator of the severe
abuse by the trial court, the trial court maintained custody of the child with DCS, in large
part based on the severe abuse finding. And the trial court specifically adopted the juvenile
court’s disposition, which provided that Mother was not to allow any contact whatsoever
between Boyfriend and the child, on pain of possible criminal charges. This order clearly
interferes with Mother’s right to have custody and control over her own child. Thus, while
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she has not been named a perpetrator of severe abuse, we cannot conclude that she was not
aggrieved by the severe abuse finding.
In a somewhat similar case, this Court concluded that a parent had standing to
contest a decision, the result of which interfered with the parent’s liberty interest. See
Matter of McBee, No. 88-129-II, 1988 WL 87699, at *1 (Tenn. Ct. App. Aug. 24, 1988).
In Matter of McBee, the State filed a petition to declare the child dependent and neglected.
Id. at *1. The child’s biological father, who did not have custody of the child at the time
that the State filed the petition, was served, and thereafter filed a petition for custody of the
child. After the juvenile court denied his petition, the father appealed. The circuit court
dismissed the father’s petition in part because he did not have standing to contest the
dependency and neglect order, because the child had not been removed from his custody.
We reversed, holding that while the father did not have “legal custody” of the child at the
time the petition was filed, he was still aggrieved by the order placing the child in State
custody, because the order interfered with his protected liberty interest in the care and
custody of his child. Id.
More recently, we likewise rejected an argument that a parent did not have standing
to pursue an appeal in the dependency and neglect context. See In re Courtney R., No.
M2015-01024-COA-R3-JV, 2017 WL 1548241 (Tenn. Ct. App. Apr. 28, 2017). In In re
Courtney, DCS removed a child from a mother’s custody and placed her with foster
parents. Id. at *1. The child’s guardian ad litem then filed a dependency and neglect petition
in the juvenile court. Id. The biological father participated in developing a permanency
plan, and DCS sought to provisionally place the child with him. Id. After the parties waived
the adjudicatory hearing, the juvenile court ruled that custody would remain with DCS. Id.
at *1, 2. Only the father appealed the juvenile court judgment to circuit court, which
reversed and ordered that custody would be placed with the father. Id. at *2–3.
The mother then appealed the judgment of the circuit court to this Court. Id. at *3.
On appeal, the guardian ad litem argued that we lacked subject matter jurisdiction over the
mother’s claims and that she lacked standing. Id. We rejected both arguments. First, we
held that even though Mother did not perfect an appeal of the juvenile court judgment, she
was not required to do so in order to appeal to this Court. Id. at *4. We further rejected the
guardian ad litem’s argument that the mother lacked standing, holding that the mother
“clearly possesses an interest recognized by law that was affected by the circuit court’s
order” because the action affected her “fundamental right, based in both federal and state
constitutions, to the care, custody, and control of his or her own child.” Id.
Like the parents in Matter of McBee and In re Courtney, Mother has a fundamental
right to the care and custody of her own child. The severe abuse finding interferes with that
right, regardless of whether she was found to be the perpetrator of that abuse. Stated another
way, Mother has standing to contest the severe abuse finding. As DCS points out, in order
to establish standing, Mother must show: (1) an injury which is distinct and palpable; (2) a
- 14 -
causal connection between that injury and the conduct of which she complains; and (3) the
likelihood that a favorable decision will redress that injury. Petty v. Daimler/Chrysler
Corp., 91 S.W.3d 765, 767 (Tenn. Ct. App. 2002) (citations omitted). Here, although
Mother was not found to have been a perpetrator of severe abuse, the severe abuse finding
against Boyfriend has significant ramifications for her. Specifically, the severe abuse
finding prevents Boyfriend and the child from having any contact with each other, much
less residing together. See also Tenn. Code Ann. § 37-1-130(c) (discussed, supra). Thus,
the most significant barrier to reunification of the child with Mother is her continued
relationship with Boyfriend. In fact, the DCS family services worker testified that Mother
had completed all other tasks required of her by the permanency plan, and the only barrier
standing in the way of Mother’s full compliance was her continued contact with Boyfriend.
Mother, however, shares a child with Boyfriend, lives with him, and relies on him for
support. As such, the severe abuse finding has significant ramifications with respect to how
Mother is able to live her life. The finding essentially forces Mother to choose between the
child and Boyfriend. As such, she has a palpable injury, there is a causal connection
between the injury and the severe abuse finding, and a reversal of the severe abuse finding
is likely to redress that injury. She therefore has standing to appeal that finding.
We next turn to consider whether clear and convincing proof exists to support a
finding that the child was a victim of severe abuse under section 37-1-102(b)(27)(C). The
evidence in this case to support the severe abuse finding consists largely of disclosures the
child made to various individuals in the fall of 2018. There is no evidence that there was a
witness to the abuse and no physical evidence was presented to substantiate the allegations.
Of course, this Court has previously held that a child’s disclosures of sexual abuse “are not
rendered untrustworthy simply because there was no eyewitness to the abuse, and no
physical evidence to confirm that it occurred.” In re Madison M., No. M2013-02561-
COA-R3-JV, 2014 WL 4792793, at *14 (Tenn. Ct. App. Sept. 25, 2014); see also In re
Azhianne G., No. E2020-00530-COA-R3-JV, 2021 WL 1038208, at *9 (Tenn. Ct. App.
Mar. 18, 2021) (citing In re Madison, 2014 WL 4792793, at *14)). In such a situation, the
issue of whether the child’s statements are trustworthy is for the trial judge to decide. Id.16
Here, the trial court’s finding of severe abuse largely rested on its assessment of
witness credibility. A DCS investigator and two of the child’s former teachers testified
about the disclosures made to them, while Mother and Boyfriend testified that the alleged
16
In Madison, the issue considered by the court was whether the child’s out-of-court statements
should be admitted into evidence under rule 803(25) of the Tennessee Rules of Evidence, which allows
certain out-of-court statements regarding abuse by children to be admitted, “[p]rovided that the
circumstances indicate trustworthiness[.]” As DCS points out in its brief, Mother did not object to the
admissibility of these statements at trial. As such, the admissibility of the child’s statements is not at issue
in this appeal. But the fact that the statements were admissible does not, ispo facto, address the question of
whether they provided the necessary clear and convincing proof of severe abuse. As such, the credibility
and trustworthiness of the child’s statements are relevant to this appeal despite the fact that questions of
admissibility were not properly raised.
- 15 -
abuse did not occur. The trial court’s determination of the credibility of each of these
witnesses is entitled to great weight on appeal. See In re Samaria S., 347 S.W.3d 188, 200
(Tenn. Ct. App. 2011) (“Findings of fact based on witness credibility are given great
deference and will not be disturbed absent clear evidence to the contrary.”); In re Melanie
T., 352 S.W.3d 687, 702 (Tenn. Ct. App. 2011) (“When the trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are involved,
considerable deference is accorded to the trial court’s factual findings.”). Nothing in the
record indicates that the trial court erred in assessing the credibility of the witnesses that
were present before it. Indeed, there is no dispute that the child did indeed make these
disclosures to the DCS investigator, the forensic interviewer, and two teachers. Moreover,
there is no real dispute that the child was suffering from irritation in her private area on the
date that she made the initial disclosure. The central question in this case, however, is
whether the child’s disclosures that indicated that this discomfort was due to abusive
conduct by Boyfriend are trustworthy. Moreover, because these disclosures make up
essentially the sole proof to show that Boyfriend committed severe abuse, we must evaluate
the disclosures to determine whether they provide clear and convincing evidence to support
the severe abuse finding.
Importantly, the trial court did not hear proof directly from the child, but only heard
the child’s disclosures through the statements of others and the video-recorded forensic
interview. In this situation, the trial court cannot “insulate [its] findings from review by
denominating them credibility determinations, for factors other than demeanor and
inflection go into the decision whether or not to believe a witness.” Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 575, 105 S. Ct. 1504, 1512, 84 L. Ed. 2d 518 (1985).
“Documents or objective evidence may contradict the witness’ story; or the story itself may
be so internally inconsistent or implausible on its face that a reasonable factfinder would
not credit it.” Id. Indeed, “appellate courts are not required to give [] deference to a trial
court’s findings of fact based on documentary evidence such as depositions, transcripts, or
video recordings.” Kelly v. Kelly, 445 S.W.3d 685, 693 (Tenn. 2014) (emphasis added)
(citing Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 448 (Tenn. 2012)). As our
supreme court explained:
When findings are based on documentary evidence, an appellate court’s
ability to assess credibility and to weigh the evidence is the same as the trial
court’s. Accordingly, when factual findings are based on documentary
evidence, an appellate court may draw its own conclusions with regard to the
weight and credibility to be afforded that documentary evidence.
Id. (citations omitted).
Respectfully, the trial court’s finding that the child’s statements were “consistent”
is undermined by our de novo review of the forensic interview video, which reveals
multiple “internal[] inconsisten[cies]” in the child’s disclosures. Anderson, 470 U.S. at
- 16 -
575. While it is true that the child made similar disclosures to her teachers and the DCS
investigator, her disclosures during the forensic interview were numerous and varied. For
example, although the child initially stated that Boyfriend had used hand sanitizer on her
private area, she later amended this statement to state that he also used hot sauce on this
area as well. Upon being asked what the hand sanitizer looked like, the child said it was
blue. Later, when the forensic interviewer asked her if the hand sanitizer was blue, she said
it was green. The child also mentioned that Boyfriend used or threatened to use hot sauce
on her eyes to the DCS investigator and her former teacher. DCS argues that the child’s
repeated statements to various people regarding the hand sanitizer incident lend that
allegation an indicium of reliability. We would expect, then, that DCS would assign similar
credence to the child’s spontaneous allegations concerning the use of hot sauce on her
body, which allegations were likewise repeated to multiple individuals. Cf. In re Melanie
T., 352 S.W.3d at 702 (noting that consistent statements made over a period of time to
different people “may constitute clear and convincing evidence” of sexual abuse, especially
when coupled with other evidence) (discussed in detail, infra). DCS, however, does not
seem to take these allegations concerning the hot sauce seriously—while hand sanitizer is
mentioned fourteen times in DCS’s brief, hot sauce is mentioned only once and, even then,
only in the context of the child’s initial statement to the investigator that Boyfriend
threatened to put hot sauce in her eyes. DCS’s choice to omit these allegations from its
brief suggests their position that the child’s allegation that Boyfriend put hot sauce on her
private area had so little credibility or veracity as to not bear mentioning.
Moreover, this was not the only mention of hot sauce by the child. Instead, her other
remarks about hot sauce illuminate additional inconstancies in her disclosures. For
example, when asked whether Mother was aware of the alleged abuse and what her reaction
was, the child gave three different answers: (1) that Mother slept through the abuse; (2)
that Mother awoke and learned of the abuse, but did not care; and (3) that Mother awoke
and learned of the abuse, and then “ground” Boyfriend and put hot sauce in his eyes.
Despite the child stating that Mother was aware of the abuse in some of her statements,
DCS does not argue in this case that Mother committed severe abuse by knowingly failing
to protect the child from Boyfriend’s alleged abuse. Indeed, DCS goes so far as to argue
that Mother cannot contest the severe abuse finding because it was not relevant to her. As
such, DCS again appears to discount some of the child’s statements, while relying heavily
on others.
The child’s explanation of how often the alleged abuse occurred was also not
consistent. First, the child indicated that the alleged abuse occurred only a single time at
night. The child later stated that Boyfriend had poured both hand sanitizer and hot sauce in
her private area “Friday, Saturday, Sunday,” and also “100 days” and “100 times.”
Moreover, the sexual abuse allegations were not the only allegations made by the
child in the forensic interview. The child alleged that her former teachers were going to jail
in part because they kicked her. And the child alleged that Boyfriend had not only killed
- 17 -
eighteen cats and stomped on her stomach, but had killed and dismembered their neighbor
before burying him in the yard. DCS again declines to discuss these allegations in its brief,
suggesting its position that these allegations should not be given weight in determining
whether Boyfriend committed severe abuse against the child. DCS’s witnesses also did not
fully reckon with these inconsistencies, stating that they could not remember the child’s
varied allegations or that the child could have been telling the truth in all instances
depending on the circumstances.
DCS does not cite a single case wherein we have affirmed a finding of severe abuse
under similar circumstances.17 Our own review of the caselaw shows a multitude of cases
that have affirmed severe abuse findings without witnesses or physical evidence, but these
cases are not analogous to the case-at-bar. For example, in In re Madison M., No. M2013-
02561-COA-R3-JV, 2014 WL 4792793 (Tenn. Ct. App. Sept. 25, 2014), the child
disclosed to her teacher that her stepfather had touched her private area. Id. at *10. The
child’s teacher testified that the child touched her private area daily at school and that she
believed that the child knew the difference between truth and “non-truth.” The child’s
school counselor confirmed that the child complained that her private area hurt on several
occasions. The child later repeated these allegations during a forensic interview. The child
was generally consistent that her stepfather was the perpetrator, but once named her three-
year-old brother. A former preschool teacher testified that the child never had issues with
lying. Finally, a licensed clinical psychologist testified that the child made the same
allegations consistently against stepfather during their sessions, that the child could
demonstrate the abuse, and that her behavior when discussing the abuse was avoidant,
which was “congruent with the allegations of sexual abuse.” Id. The psychologist also
opined that the child’s statements were credible, despite sometimes not answering
objective questions truthfully, due to the consistency of the allegations over three sessions,
–as made verbally, acted out, and in drawings.
On appeal, the stepfather argued that the child could not distinguish between the
truth and a lie. Id. at *13. He therefore asserted that the trial court should not have admitted
her statements under Rule 803(25) of the Tennessee Rules of Evidence. Although we
conceded that the child had difficulty distinguishing between truths and lies and had once
alleged that her three-year old brother was the perpetrator of the abuse, we concluded that
“the overall circumstances present in this case indicate trustworthiness[.]” Id. In support,
we noted that although there were “slight variances” in the child’s disclosures, the child
was generally consistent in her allegations against stepfather and was “unmistakably clear
in communicating the details of the abuse to several people.” Id. We also noted that no
evidence was presented of a motive for the child to be untruthful. Moreover, the child’s
teacher, guidance counselor, and psychologist testified that they believed the allegations.
Based on the child’s statements and the other testimony presented, we affirmed the trial
court’s finding that there was clear and convincing evidence of severe abuse. Id. at *14.
17
Nor does DCS cite a single case that is factually similar.
- 18 -
We came to the same conclusion in In re Azhianne G., No. E2020-00530-COA-
R3-JV, 2021 WL 1038208, at *1 (Tenn. Ct. App. Mar. 18, 2021). In that case, a four-year-
old child made spontaneous disclosures of sexual abuse to both a forensic interviewer and
a treating therapist. Id. at *2. Indeed, the evidence showed that during both the forensic
interview and later therapy sessions, the child was able to specifically and graphically
describe the sexual abuse in detail, both by reenacting the abuse and using anatomical
language that was beyond a typical four-year-old’s vocabulary. Id. at *5. At all times, the
child named the mother as the sole perpetrator. Id. at *5–6. As such, both the forensic
interviewer and the therapist testified that the child’s allegations were credible. The
evidence further showed that the child had severe behavioral issues, including aggression,
sexualized behavior, and violence to others and animals. Id. at *2. Indeed, the child stated
a desire to engage in sexual acts with both his therapist and the forensic interviewer and
was disappointed by their refusal. Id. at *6. Under these circumstances, we held that the
child’s statements were trustworthy under Rule 803(25). Id. at *6. We further held that
“the [c]hild’s age at the time and the consistency and spontaneity of his disclosures of
abuse, coupled with his obvious knowledge of terms and feelings associated with sexual
acts and body parts and his unwavering identification of [m]other as the perpetrator”
provided clear and convincing proof to establish severe abuse. Id. at *8.
The same is true of In re Melanie T. In that case, the trial court found that the
children were the victims of severe abuse based on numerous disclosures the children made
of the abuse to counselors, doctors, and teachers. 352 S.W.3d at 700. The evidence showed
that the two children made similar, but independent disclosures of the abuse in graphic
terms, sometimes with drawings. Id. at 701. Indeed, the children both engaged in sexual
behavior and had sexual knowledge not typical of their age. Moreover, an expert testified
that the children suffer from issues that are typical in victims of child sexual abuse and
testified, to a reasonable degree of medical certainty, that at least one of the children had
suffered sexual abuse at the hands of their stepfather. Finally, even the children’s mother
admitted that she witnessed the stepfather abuse the children, albeit in a non-sexual manner.
Id.
On appeal, the stepfather argued that the severe abuse finding was not supported by
clear and convincing evidence. We ultimately disagreed, explaining:
Our courts recognize that statements by a young child, made over a period of
time to different people under circumstances and in situations that were not
unduly suggestive or directive regarding sexual abuse by an adult, may
constitute clear and convincing evidence that the child was sexually abused,
especially when coupled with the exhibition of sexualized behavior and the
development of psychological and emotional problems, as was present in this
case.
- 19 -
Id. (citing In re S.M.C. & J.L.C., No. 01A01-9807-JV-00358, 1999 WL 378742, at *4
(Tenn. Ct. App. June 11, 1999)).
In another case, the father attempted to undermine the child’s credibility and
therefore the evidence of abuse by pointing out that the child “once made manifestly false
allegations that Father broke into their house.” In re: M.D., No. M2015-01023-COA-R3-
JV, 2016 WL 5723954, at *4 (Tenn. Ct. App. Sept. 30, 2016). We rejected the father’s
argument, however, by holding that “a child’s making a false allegation in one separate
instance” does not necessarily “negate a body of consistent allegations of sexual abuse.”
Id.
In this case, the child did make spontaneous disclosures that Boyfriend used foreign
substances on her private area to multiple individuals. These disclosures unequivocally
named Boyfriend as the perpetrator. These facts certainly lend credence to the allegations
of severe abuse. See In re Azhianne G., 2021 WL 1038208, at *8 (noting as support for
the severe abuse finding that the child was “unwavering” in his identification of mother as
the perpetrator of the abuse); In re Melanie T., 352 S.W.3d at 702 (noting that consistent
disclosures over a period of time to different people, coupled with other evidence, may
constitute clear and convincing evidence of abuse). Still, the child also said that Boyfriend
did not hurt her and that no one touched her. Furthermore, none of the above cases involve
the type and frequency of inconsistencies as to other details of the alleged abuse that are
present here. Here, the child was not consistent in detailing the instrumentality of the
abuse—be it hand sanitizer or hot sauce; the frequency of the abuse—from one instance to
“100 days”; or whether her mother had knowledge of the abuse—which ranged from not
knowing to not caring to punishing Boyfriend.
The child’s other allegations against Boyfriend also give us pause. According to the
child, Boyfriend not only killed eighteen cats and stomped on her stomach, he murdered
and dismembered a neighbor before burying him in the yard, for which the police arrested
him. Other than the child’s statements, there was no proof whatsoever to substantiate these
claims. The child’s allegations were not limited, however, to Boyfriend, as she also alleged
physical abuse by her former teachers. Importantly, DCS ignores these allegations in its
brief. Under these circumstances, we can only conclude that DCS wants this Court to
believe the child’s allegation concerning hand sanitizer, while ignoring all of the other
troubling and sometimes fanciful allegations made by the child.
Moreover, there was no expert medical or psychological proof of any kind submitted
to substantiate the child’s allegations in this case. But see In re Madison M., 2014 WL
4792793, at *14 (noting that physical proof is not always necessary). Importantly, unlike
some of the above cases, there was no expert testimony in this case that the child was able
to distinguish between truth and untruth. See, e.g., In re Azhianne G., 2021 WL 1038208,
at *1. While the child’s former teachers and the DCS investigator testified that they
believed the child about the hand sanitizer allegation, they often deflected when questioned
- 20 -
about the child’s other allegations. The forensic interviewer did not testify or offer any
expert opinion about the truth of the child’s allegations or her veracity. As such, it is rank
speculation to suggest that due to the length of the interview or other circumstances, the
child’s initial statements are to be given weight, while the other allegations that she makes
throughout the entirety of the interview are to be discarded.18 And the child did not make
any disclosures of abuse to Dr. Saunders that he could evaluate for their veracity. The
omission of proof as to the child’s ability to distinguish between truth and untruth is
especially relevant in this case because the evidence was undisputed that the child had been
diagnosed with developmental delays that affect her behavior; even the DCS investigator
conceded that it would not be unusual for a child in that situation to make up stories and
that the child at issue indeed had a “propensity” to do so, as she often had difficulty
distinguishing between the truth and facts created by her imagination. In light of the
omission of this evidence coupled with the other incredible allegations in the forensic
interview, we must conclude that substantial doubts about the child’s ability to understand
the difference between truth and untruth exist in this case.
This case is distinguishable from the above cases in other ways. First, there was not
expert testimony that the child was behaving in a way or suffering from issues that were
typical of children who were the victims of sexual abuse. See In re Madison M., 2014 WL
4792793, at *10 (relying in part on testimony that the child’s behavior was consistent with
having experienced sexual abuse); In re Melanie T., 352 S.W.3d at 702 (relying in part on
testimony by an expert that the children suffered from disorders that were typical of victims
of child sexual abuse and also exhibited sexual behaviors). Ms. Urvan in fact testified to
the opposite—that she had not observed any sexually reactive behaviors of any kind in her
time with the child.19 Nor did the evidence show that the child has sexual knowledge
inappropriate for her age. See id. Indeed, unlike the child in In re Azhianne¸ who used
graphic language far beyond what was age-appropriate, the child here did not utilize such
language; when asked to name her private area on a drawing, the child consistently stated
that this area was the “intestines.” In re Azhianne, 2021 WL 1038208, at *6.
Returning a child to home where there is even a possibility of sexual abuse is not a
situation that this Court takes lightly. But Tennessee law provides that we exercise the same
18
To be sure, DCS offers no evidence and makes no argument that the length of the interview—
approximately one and-a-half hours, including an extended break, which the forensic interviewer apparently
determined was an appropriate length of time—contributed to or in any way caused the child’s inconsistent
and exaggerated statements.
19
Like Dr. Saunders, Ms. Urvan also testified that the child made no disclosures of past abuse to
her. Although Ms. Urvan testified that it was “possible” that the child would not remember these events
months later, the child did tell Ms. Urvan, unprompted and multiple times, that Boyfriend did “nothing” to
her and that she was merely “playing jokes on her teacher.” Thus, Ms. Urvan’s own testimony undermines
her opinion that the child possibly could not remember the events of 2018. Moreover, Ms. Urvan’s
testimony does not indicate her role at the King’s Daughters’ School or her education; as such, it is entirely
unclear what weight should be given to this rather unsupported opinion.
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caution in removing a child from her parents without sufficient proof to substantiate the
allegations made against them, as the law requires clear and convincing evidence to
substantiate severe abuse. See In re H.L.F., 297 S.W.3d at 233. As this Court has
previously explained concerning the clear and convincing evidence standard:
“Evidence satisfying the clear and convincing evidence standard establishes
that the truth of the facts asserted is highly probable and eliminates any
serious or substantial doubt about the correctness of the conclusions drawn
from the evidence.” In re A.T.P., No. M2006-02697-COA-R3-CV, 2008
WL 115538, at *4, 2008 Tenn. App. LEXIS 10 (Tenn. Ct. App. Jan. 10,
2008) (citing State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL
21946726, at *9, 2003 Tenn. App. LEXIS 569 (Tenn. Ct. App. Aug. 13,
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). The evidence
should produce a firm belief or conviction as to the truth of the allegations
sought to be established. In re A.T.P., 2008 WL 115538, at *4, 2008 Tenn.
App. LEXIS 10 (citing In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App.
2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001)). “In contrast
to the preponderance of the evidence standard, clear and convincing evidence
should demonstrate that the truth of the facts asserted is ‘highly probable’ as
opposed to merely ‘more probable’ than not.” In re M.A.R., 183 S.W.3d 652,
660 (Tenn. Ct. App. 2005) (quoting In re C.W.W., 37 S.W.3d 467, 474
(Tenn. Ct. App. 2000)). See also In re Samaria S., 347 S.W.3d [188,]
200 [(Tenn. Ct. App. 2011)].
In re S.J., 387 S.W.3d 576, 586–87 (Tenn. Ct. App. 2012).
Despite our reluctance to overturn the decision of the trial court given the serious
nature of the allegations at issue, we must conclude that clear and convincing evidence was
not presented to support the allegation of severe abuse. Here, the claim of severe abuse
rests nearly exclusively on disclosures made by the child to third parties. The trial court
found the testimony of various witnesses to whom these disclosures had been made
credible. Nothing in the record suggests that the trial court was in error in accepting this
testimony. The issue in this case is not whether the child made these disclosures, but
whether the disclosures produce a firm conviction of the truth of the allegations. See In re
S.J., 387 S.W.3d at 586 (citing In re A.T.P., 2008 WL 115538, at *4). And here the
disclosures themselves are suspect, riddled as they are with inconsistencies, exaggerations,
and obvious fabrications that DCS chooses to ignore rather than address. Thus, this is not
the case where a child’s consistent allegations are rebutted by only a single instance of a
false allegation. See In re: M.D., 2016 WL 5723954, at *4.
We concede that some facts in this case do lend support to DCS’s theory. Despite
the absence of any physical proof, there is no real dispute that the child was suffering from
irritation in her private area. Unlike any of the cases cited above, however, the proof shows
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that this irritation could possibly be explained by the child’s diagnosis of pinworms around
this time period. Still, the child often named Boyfriend as the perpetrator, except in those
repeated instances in which she claimed that he had done nothing untoward to her. We are
also troubled by Mother’s decision to remove the child from school on the same day that
she was interviewed concerning these allegations, although we cannot say with certainty
that the removal was a result of the DCS investigation. Likewise, the proof shows that
Mother resisted taking the child for the forensic interview; Mother testified without
apparent dispute, however, that she wanted to retain an attorney before the interview took
place. Given the very serious allegations that were being levied against her, we cannot say
that Mother’s instinct to seek legal advice was entirely unreasonable.20 There was also no
evidence presented other than vague insinuations that the child was angry at Boyfriend to
suggest a motive for her allegations. But the forensic interview demonstrates that the child
indeed made other outlandish and untrue allegations against Boyfriend and other
individuals. Given that the child made a multitude of allegations against Boyfriend that
DCS does not appear to contend are credible and the child’s disclosures make up the bulk
of the dispositive evidence in this case, we must conclude that the evidence presented in
this case simply fails to “‘eliminate[] any serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.’” In re S.J., 387 S.W.3d at 586 (quoting In
re A.T.P., 2008 WL 115538, at *4). The trial court’s finding that the child was a victim of
severe abuse committed by Boyfriend is therefore reversed.
B. Educational Neglect
Mother next contends that the trial court erred in finding educational neglect at the
time of the de novo hearing. In contrast, DCS contends that the trial court correctly found
that the child was dependent and neglected at the time of the de novo hearing under
Tennessee Code Annotated section 37-1-102(b)(13(C), which defines a dependent and
neglected child as one “[w]ho 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[.]”
Here, there is no dispute that Mother voluntarily chose to remove the child from
public school on the morning of October 19, 2018. According to Mother, she decided to
remove the child in favor of home-schooling because she was dissatisfied with the
instruction that the child was receiving, in that the school wanted the child to attend only
half-days. By March 2019, however, a DCS home visit revealed that Mother was not
residing with the child full-time and that step-grandfather was teaching the child solely
through the use of a deck of playing cards. As a result, DCS filed an amended petition for
dependency and neglect to allege educational neglect.
20
Mother did retain an attorney very early in these proceedings, despite the fact that she was later
declared indigent in this appeal.
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Mother of course disputes that the child was ever educationally neglected, even in
March 2019. But her central argument in this appeal is that, regardless of the circumstances
that existed in March 2019, the child was not suffering from educational neglect as of the
date of the de novo hearing in the trial court on January 30, 2020. Rather, at that time, the
child was enrolled in the King’s Daughters’ School. Moreover, Mother testified at the de
novo hearing that should the child be returned to her custody, she would enroll the child in
the local public school. Thus, Mother contends that there was no evidence that educational
neglect existed as of the date of the de novo hearing.
It is well-settled that “the circumstances leading to a finding of dependency and
neglect must exist at the time of the de novo hearing.” In re Caleb L.C., 362 S.W.3d 581,
599 (Tenn. Ct. App. 2011) (citing Green v. Green, M2007-01263-COA-R3-
CV, 2009 WL 348289, at *10 n.13 (Tenn. Ct. App. 2009)). Thus, while the circuit court
may consider the record that was created in the juvenile court proceedings, the circuit court
may not rely solely on the record made before the juvenile court. Green,
2009 WL 348289, at *7. Instead, the circuit court must try the matter “as if no other trial
had occurred.” Id. (citing Ware v. Meharry Medical College, 898 S.W.2d 181, 184 (Tenn.
1995)). “Since the purpose of a dependency and neglect proceeding is to protect the welfare
of the child, a court should hear evidence of the present situation so that it can ma[k]e a
decision, including custody if appropriate, based on the child’s best interest at the time of
the decision.” Id. at *10 n.13.
In practice, this rule means that while a child may have been properly adjudicated
as dependent and neglected at the time of the juvenile court hearing, if circumstances have
changed so that the child is no longer dependent and neglected at the time of the de novo
circuit court hearing, the dependency and neglect petition must be dismissed. See In re
Landon H., No. M2014-01608-COA-R3-JV, 2016 WL 762741, at *6 (Tenn. Ct. App. Feb.
25, 2016) (citing Green, 2009 WL 348289, at *4) (“If the conditions of dependency and
neglect do not exist at the time of the hearing, the circuit court must dismiss the petition.”).
For example, in Green v. Green, the juvenile court found the children dependent and
neglected because the mother was living with a registered sex offender. By the time of the
de novo trial in circuit court, however, Mother no longer lived with him and had in fact
divorced him. As such, we affirmed the circuit court’s refusal to find dependency and
neglect because the mother “removed the circumstances that created the dependency and
neglect.” Green, 2009 WL 348289, at *10.
In another case, we found that evidence of Mother’s prior drug use was not sufficient
to sustain a finding that the child was dependent and neglected at the de novo circuit court
hearing. See In re K.A.P., No. W2012-00281-COA-R3-JV, 2013 WL 6665012 (Tenn. Ct.
App. Dec. 17, 2013). As we explained, the dependency and neglect statute “does not permit
a court to hold that any bad behavior whatsoever by a parent must inevitably lead to a
finding that the child is dependent and neglected.” Id. at *7. Moreover, we held that “the
fact that [m]other at some point in the past engaged in once-per-week marijuana use and
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had a single positive drug test in September 2011, without more, does not amount to clear
and convincing evidence that [m]other is ‘unfit to properly care for [son]’ or that [s]on is
dependent and neglected” as of the December 2011 de novo trial. Id. at *8. In another case,
we affirmed the trial court’s dismissal of a dependency and neglect petition when the
evidence showed that Mother was no longer transient, unemployed, using illegal drugs, or
without transportation at the time of the de novo hearing. See In re Alysia M.S., No.
M2011-02008-COA-R3-JV, 2013 WL 1501710, at *8 (Tenn. Ct. App. Apr. 11, 2013).
But in In re Nehemiah H., No. M2019-01167-COA-R3-JV, 2020 WL 3885956
(Tenn. Ct. App. July 8, 2020), we came to the opposite conclusion. Id. at *8. In that case,
the children were removed from the parents’ home and placed with relatives by the time of
the de novo hearing. Nevertheless, we held that the children were still dependent and
neglected where the parents did not recognize the role they had played in the children’s
trauma and the children expressed fear of returning to them. Id. Similarly, in In re Crystal
W., No. E2020-00617-COA-R3-JV, 2021 WL 214823 (Tenn. Ct. App. Jan. 21, 2021), we
held that the circuit court did not err in finding the child dependent and neglected. Id. at
*10. In that case, the evidence demonstrated that the mother’s living situation and mental
health had improved somewhat during the period between the juvenile court proceedings
and the de novo trial, but the mother had no concrete plan for caring for the children upon
their return and the mother continued to disagree that she was in need of mental health
treatment. Id.
DCS does not dispute that the circumstances of the child must be judged at the time
of the de novo hearing. But DCS argues that Green and its progeny have created a “Catch-
22” in which a parent may have a child returned to his or her care when DCS has removed
the child and thereby eliminated the condition that led to the dependency and neglect
finding. Instead, DCS urges this Court to adopt an interpretation of our dependency and
neglect framework wherein a child is dependent and neglected when the proof shows that
she has sustained abuse or neglect in the past.
In support of this argument, DCS asks us to look at the very definition of a
dependent and neglected child found in Tennessee Code Annotated section 37-1-
102(b)(13)(G), which it asserts defines a dependent and neglected child as one “[w]ho is
suffering from abuse.” DCS then directs us to consider the statute’s definition of abuse,
which may be found when a child “is suffering from, has sustained, or may be in immediate
danger of suffering from or sustaining a wound, injury, disability or physical or mental
condition caused by brutality, neglect or other actions or inactions of a parent, relative,
guardian or caretaker[.]” Tenn. Code Ann. § 37-1-102(b)(1) (emphasis added). Thus, DCS
argues that the child may be found to be currently dependent and neglected because she
previously sustained educational neglect.
This issue requires that we interpret a statute, and we are therefore guided by our
familiar rules of statutory construction. Thus, in interpreting section 37-1-102, “[o]ur role
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is to determine legislative intent and to effectuate legislative purpose.” Mills v. Fulmarque,
Inc., 360 S.W.3d 362, 368 (Tenn. 2012) (citing Lee Med., Inc. v. Beecher, 312 S.W.3d
515, 526 (Tenn. 2010); In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009)). “The
text of the statute is of primary importance, and the words must be given their natural and
ordinary meaning in the context in which they appear and in light of the statute’s general
purpose.” Id. (citing Lee Med., Inc., 312 S.W.3d at 526; Hayes v. Gibson Cnty., 288
S.W.3d 334, 337 (Tenn. 2009)). If we determine that the language of the statute is clear
and unambiguous, we look no farther to ascertain the statute’s meaning. Id. (citing Lee
Med., Inc., 312 S.W.3d at 527; Green v. Green, 293 S.W.3d 493, 507 (Tenn. 2009).
Respectfully, we conclude that the plain language of section 37-1-102 belies DCS’s
assertions. Importantly, despite DCS’s assertion otherwise, a dependent and neglected
child is not only one that is suffering from abuse, but also one that is suffering from neglect.
See Tenn. Code Ann. § 37-1-102(b)(13)(G) (defining a dependent and neglected child as
one “[w]ho is suffering from abuse or neglect”) (emphasis added). And here, DCS has not
alleged that Mother’s alleged failure to educate the child rises to the level of abuse required
by section 37-1-102(b)(1). Instead, as previously discussed, DCS asserts that its allegations
against Mother fall under section 37-1-102(b)(13)(C), which provides that a child is
dependent and neglected if he or she “is under unlawful or improper care, supervision,
custody, or restraint” or “is unlawfully kept out of school.”
Importantly, the definition of a dependent and neglected child cited by DCS contains
a different verb tense than the definition actually at issue in this case. Cf. Nationwide Mut.
Fire Ins. Co. v. Memphis Light, Gas & Water, 578 S.W.3d 26, 35 (Tenn. Ct. App. 2018)
(“[I]n construing statutes, we must consider the grammar employed by the legislature.”)
(citing Hawkins v. Case Mgmt. Inc., 165 S.W.3d 296, 300 (Tenn. Ct. App. 2004) (“In
addition to being bound by the plain language of the statute, this Court is also bound by the
general rules of grammatical construction.”)). But see Tennessee Manufactured Hous.
Ass’n v. Metro. Gov’t of Nashville, 798 S.W.2d 254, 257 (Tenn. Ct. App. 1990) (citing
Tidwell v. Collins, 522 S.W.2d 674, 676 (Tenn. 1975)) (“However, the courts should not
base their construction of statutes solely on the technical rules of grammar and
punctuation.”). Here, subsection (b)(1) contains verbs in forms of the past, present, and
future tenses to ensure that victims of abuse may be protected through dependency and
neglect proceedings. See Tenn. Code Ann. § 37-1-102(b)(1) (requiring variously that the
child “is suffering from, has sustained, or may be in immediate danger of suffering” abuse).
In particular, the portion of the subsection relied upon by DCS, that the child “has
sustained” abuse, uses the present perfect tense, which is “a tense indicating an action as
completed or a state as having ended at the time of speaking, but not in any definite time
in the past [] (Ex. has gone).” Webster’s New World College Dictionary 1152 (5th ed.
2014). Thus, the use of the verb has sustained therefore “indicates that the legislature
intended for the court to consider conduct that occurred in the past up to and including the
present.” In re Sheneal W. Jr., 45 Conn. Supp. 586, 595, 728 A.2d 544, 550 (Conn. Super.
Ct. 1999). This makes logical sense, as a parent cannot erase specific acts of brutality and
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the consequences that flow therefrom by simply refraining from continuing the abuse,
particularly when a factor in the cessation of the abuse is DCS’s involvement. Instead, as
this Court recently explained, “the fact of [the child’s] egregious injuries remains a
constant,” even after the parent has made positive changes in his or her life. In re Treylynn
T., No. W2019-01585-COA-R3-JV, 2020 WL 5416649, at *8 (Tenn. Ct. App. Sept. 9,
2020), appeal granted, cause remanded on other grounds, (Tenn. Dec. 16, 2020).
The Tennessee General Assembly, however, did not choose to utilize the present
perfect tense in the definition of a dependent and neglected child that is at issue now.
Rather, subsection (b)(13)(C) uses the present tense in that it applies to a child who is under
improper care or control or who is kept out of school unlawfully. We note that while the
past tense form of the word “to keep” is used in the definition, it is coupled with the present
tense of the verb “to be.” Under these circumstances, we believe that the phrase “kept out
of school” constitutes a past participle phrase that does not denote past action. See, e.g.,
VanGessel v. Lakewood Pub. Sch., 220 Mich. App. 37, 43, 558 N.W.2d 248, 251 (1996)
(explaining that “‘is employed’ is a past participle”). As other courts have explained, “‘[a]
past participle is simply the form of the verb used in the phrase and does not suggest past
action.’” In re Roberts, 431 B.R. 914, 917 (Bankr. S.D. Ind. 2010) (quoting In re Taylor,
388 B.R. 115, 119 (Bankr. M.D. Pa. 2008)). “For example, the United States Supreme
Court has stated that past participles ‘describe the present state of a thing,’ just the way
‘adjectives [ ] describe the present state of the nouns they modify.’” Morgan v. Healing
Hands Home Health Care, LLC, 57 Kan. App. 2d 368, 382, 453 P.3d 344, 354
(2019), review denied (Kan. Aug. 31, 2020) (quoting Henson v. Santander Consumer
USA, Inc., 582 U.S. ––––, 137 S. Ct. 1718, 1722, 198 L. Ed. 2d 177 (2017)); see also Util.
Solid Waste Activities Grp. v. Env’t Prot. Agency, 901 F.3d 414, 452 (D.C. Cir.
2018), judgment entered, No. 15-1219, 2018 WL 4158384 (D.C. Cir. Aug. 21, 2018)
(Henderson, J., concurring in part) (explaining that past participle may be used to denote
present tense when combined with a present tense for the verb “to be,” “(i.e., the
pecans are covered in chocolate)”); P. Peters, The Cambridge Guide to English Usage 409
(2004) (explaining that the term “past participle” is a “misnomer[ ], since” it “can occur in
what is technically a present . . . tense”).
Our supreme court has cautioned that in the same way that we must guard against
overlooking or ignoring words in a statute, “‘we must be circumspect about adding words
to a statute that the General Assembly did not place there.’” In re Bentley D., 537 S.W.3d
907, 913 (Tenn. 2017) (quoting Coleman v. State, 341 S.W.3d 221, 241 (Tenn. 2011)).
Moreover, we “‘presume that each word used was purposely chosen by the legislature to
convey a specific meaning.’” State v. Marise, 197 S.W.3d 762, 766 (Tenn. 2006) (internal
quotation marks omitted) (quoting State v. Denton, 149 S.W.3d 1, 17 (Tenn. 2004)). Here,
the Tennessee General Assembly was unmistakably clear in section 37-1-102(b)(1) that it
intended its definition of abuse to apply to abusive conduct that occurred in the past,
present, or immediate future. In contrast, our legislature did not choose to include clear
language in section 37-1-102(b)(13)(C) that past (or future) educational neglect is
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sufficient to deem a child currently dependent and neglected. Had the Tennessee General
Assembly intended such a result, it could have easily used language similar to that
employed in section 37-1-102(b)(1). And we presume that the legislature’s choice to omit
such verbiage from section 37-1-102(b)(13)(C) was intentional. See State v. Welch, 595
S.W.3d 615, 623 (Tenn. 2020) (quoting State v. Loden, 920 S.W.2d 261, 265 (Tenn. Crim.
App. 1995)) (“The canon of statutory construction expressio unius est exclusio
alterius provides that ‘where the legislature includes particular language in one section of
a statute but omits it in another section of the same act, it is generally presumed that the
legislature acted purposefully in the subject included or excluded.’”). Thus, the language
utilized by the legislature, coupled with the de novo hearing procedure applicable in
dependency and neglect actions, indicates that the educational neglect “must exist at the
time of the de novo hearing.” In re Caleb L.C., 362 S.W.3d at 599.
Turning to the facts presented at the de novo hearing, we must agree with Mother
that DCS failed to submit clear and convincing evidence that the child was currently
suffering from educational neglect. First, we note that the trial court’s order does not
indicate that it considered the child’s present circumstances: “The court finds that the child
is dependent and neglected pursuant to [section] 37-1-102(b)(13) by the lack of educational
activities. The efforts by mother are substantially lacking and the court fully believes that
the child has, in effect, been unlawfully kept out of school.” Thus, it appears that the trial
court focused on Mother’s “educational efforts” that occurred at the time of the removal of
the child, well before the de novo hearing.
To be sure, Mother was not responsible for the child’s education at the time of the
de novo hearing, as the child had been placed in DCS custody for nearly a year. Certainly,
we understand the difficult situation that this creates, wherein a parent’s poor choices are
ameliorated by DCS’s control over the situation. But we are constrained by the language
of section 37-1-102(b)(13)(C) to apply its meaning as stated, for “it is not for the courts to
alter or amend a statute.” Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803
(Tenn. 2000) (citing Town of Mount Carmel v. City of Kingsport, 217 Tenn. 298, 306,
397 S.W.2d 379, 382 (Tenn. 1965)); see also BellSouth Telecommunications, Inc. v.
Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997)) (“When approaching statutory text,
courts must also presume that the legislature says in a statute what it means and means in
a statute what it says there.”).
Still, our caselaw shows that even when a child is removed from the home, DCS
may show current dependency and neglect by delving into the parent’s mental state and
current plans for the return of the child. See, e.g., In re Crystal W., 2021 WL 214823, at
*10 (concluding that dependency and neglect was shown when the parent had no concrete
plans for the return of the child and was not taking her mental health issues seriously); In
re Nehemiah H., 2020 WL 3885956, at *8 (concluding that dependency and neglect was
shown when the parents failed to take responsibility for their neglect of the children and
the children were still afraid of the parents). Evidence of this kind may demonstrate that
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issues remain that put the child in danger of abuse or neglect, if not for the involvement of
DCS in the child’s life. But the evidence here did not show that Mother was presently
intending to following the same course concerning the child’s education as she had taken
prior to the child’s removal. Instead, Mother testified without dispute that should the child
be returned to her care, she intends to enroll the child in the local public school. No
evidence was presented that this plan was inappropriate, and the trial court made no finding
that it did not believe Mother’s testimony on this issue. Based on the foregoing, we
conclude that DCS failed to meet its burden to demonstrate clear and convincing evidence
of educational neglect as of the date of the de novo hearing in circuit court.
In sum, DCS failed to prove, by clear and convincing evidence, that the child was
dependent and neglected either as the result of severe abuse or educational neglect. As
such, the dependency and neglect petition must be dismissed. In re Landon H., 2016 WL
762741, at *6 (citing Green, 2009 WL 348289, at *4). We therefore “remand the case for
further proceedings in light of our holding.” In re K.A.P., 2013 WL 6665012, at *8. All
other issues are pretermitted.
V. CONCLUSION
The judgment of the Marshall County Circuit Court is reversed, and this matter is
remanded with directions to dismiss the dependency and neglect petition and for further
proceedings consistent with this Opinion. Costs of this appeal are taxed to Appellee the
Department of Children’s Services, for which execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
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