In Re: Wyatt S. ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 22, 2012
IN RE: WYATT S.
Appeal from the Circuit Court for Cumberland County
No. CV005453 Amy V. Hollars, Judge
No. E2012-00539-COA-R3-JV-FILED-NOVEMBER 13, 2012
This appeal arises from a dependency and neglect proceeding. The State of Tennessee,
Department of Children’s Services (“DCS”) filed a petition against Lisa M. S. (“Mother”)
seeking to adjudicate her minor child Wyatt S. (“the Child”), born in March of 1998,
dependent and neglected. The petition was rooted in the Child’s disclosures that Mother had
sexually abused him. The juvenile court found the Child dependent and neglected. Mother
appealed to the Circuit Court for Cumberland County (“the Trial Court”) for a de novo
hearing. The Trial Court found the Child dependent and neglected by clear and convincing
evidence. The Trial Court also specifically found severe child abuse in this case. Mother
appeals to this Court. We affirm the judgment of the Trial Court in its entirety.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO,
J R., and J OHN W. M CC LARTY, JJ., joined.
Jeffrey A. Vires, Crossville, Tennessee, for the appellant, Lisa M. S.
Robert E. Cooper, Jr., Attorney General and Reporter, and, Mary Byrd Ferrara, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
Background
In January 2011, DCS filed its Petition to Declare Child Dependent and
Neglected with Protective Supervision and Restraining Order or in the Alternative for
Temporary Legal Custody in the Juvenile Court for Cumberland County (“the Juvenile
Court”). The petition alleged that Mother had sexually abused the Child. In March 2011,
the Juvenile Court entered a restraining order against Mother barring her from contacting the
Child. In August 2011, the Juvenile Court conducted a hearing on DCS’s petition.1 In
September 2011, the Juvenile Court entered an order finding the Child dependent and
neglected. The Juvenile Court also found the Child to be a victim of severe child abuse.
Mother appealed to the Trial Court.
In January 2012, a de novo hearing was conducted before the Trial Court. The
first portion of the hearing addressed whether the Child’s psychological condition would
prevent him from testifying. Vicky Startup (“Startup”) testified. Startup is a licensed clinical
social worker who had worked on the Child’s case. Startup holds a BA degree in psychology
and a master’s degree in “science and social work and clinical concentration.” Startup has
seen clients since 2001. Startup was licensed to practice independently in 2006. Startup
stated that she had taken a medical leave of absence and had not yet decided whether or not
she would retire completely.
Startup went on to testify that her focus was on “trauma and especially for
children who have been sexually violated and children who have been physically violated or
abused and neglected.” Startup estimated that she had seen “hundreds” of children in the
course of her work. Startup performed counseling and diagnosis but referred out for
psychological testing. Startup testified that she does not prescribe medication. The Trial
Court qualified Startup as an expert on the possible ramifications to the Child if the Child
testified.
Startup stated that it would be detrimental for the Child to testify. Startup
testified that the Child had suffered from nightmares and flashbacks. Startup further stated
that the Child was treated at Vanderbilt and that Vanderbilt’s diagnosis of PTSD matched her
own diagnosis. According to Startup, the Child suffered from major depressive disorder,
“severe with psychotic features.” Startup testified that the Child also had been treated for
ADHD.
1
The record contains a transcript of this hearing before the Juvenile Court. This appeal, however,
concerns the final order of the Trial Court which held its own de novo hearing.
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On cross-examination, Startup stated that she had seen the Child on an almost
weekly basis from February 2010 until August of 2011. Startup testified that the Child had
been at risk of suicide. Startup, replying to a question from the Trial Court as to whether it
would make a difference were the Child to testify outside the courtroom, stated, “I could see
him maybe going just with you if counsel was not present.”
Scott Herman (“Herman”) testified next. Herman was a self-employed senior
psychological examiner and licensed professional counselor. Herman had practiced in the
mental health profession since 1989. Herman’s professional responsibilities with children
have centered on working with abused children. Herman testified that he diagnoses mental
disorders, treats mental disorders, and provides psychological testing, but does not prescribe
medication. The Trial Court qualified Herman as an expert witness.
Herman stated that he had been involved with the Child’s case since August
2011. Like Startup, Herman testified that it would be detrimental to the Child for the Child
to testify in court. Herman stated this was so because the Child “is experiencing severe
depression and anxiety” and “is very inconsistent emotionally.” Herman also testified that
it was “in the very realistic realm of possibility” that the Child might harm himself, but that
he was confident there were safety plans in place to prevent a completed suicide. On cross-
examination, Herman stated that, while the Child would find it easier to talk around a table,
the Child would “come apart like a cheap suit in this [witness] chair.”
Based on the testimony of Startup and Herman, the Trial Court found the Child
unavailable to give testimony. The Trial Court stated that the Child “is not going to be able
to assist the court today by offering testimony,” and “trying to obtain that testimony from him
might be very detrimental to the child.”
The issue of whether the Child would testify having been resolved, the hearing
proceeded. Startup resumed her testimony. Startup testified that it was approximately five
months before the Child made a disclosure to her regarding his abuse. Startup related a host
of disclosures made by the Child. The Child told Startup that Mother’s girlfriend’s daughter
raped him. The same individual also allegedly killed the Child’s cat. In another disclosure,
the Child told Startup that Mother’s girlfriend forced him to watch scary movies and asked
him to sleep on the floor without covers. The Child told Startup that, on more than one
occasion, Mother’s girlfriend woke him up at night while she wore a scary clown mask.
Startup elaborated on disclosures the Child made about sexual abuse. The
Child told Startup that, on a weekend visit with Mother when he was ten or eleven, she “put
his penis in her and she kissed him.” Startup testified that the Child was “very embarrassed
and humiliated” in making the disclosure. Startup related another disclosure from the Child,
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whereby a man forced the Child to perform oral sex on him, resulting in the man ejaculating
in the Child’s mouth. The Child described this act as “dumping,” and was brought to mind
of this episode by the term “Humpty Dumpty” coming up. Startup stated: “[h]e made that
association [with Humpty Dumpty]. . . [t]hat’s why it’s a life sentence when a child has been
abused . . . it never goes away.” Regarding Mother and her girlfriend, Startup testified that
the Child had seen “nudity and sex and maybe not just these two but other people too.”
Startup testified to still more disclosures the Child had made. The Child told
Startup that Mother held his head underwater in the bathtub until he “saw colors.” The Child
told Startup that, in another incident, Mother held a gun to his head and “pumped” it. Also,
the Child conveyed to Startup an incident whereby he broke a lamp and, consequently, was
required by Mother to have sex with Mother’s girlfriend for one hour as punishment. The
Child told Startup of incidents involving a pill being shoved down his throat, and feeling a
stick in his arm after which point he had no memories of what happened. When asked if the
Child could be fantasizing all these myriad incidents, Startup testified, “I don’t think it was
a fantasy for Wyatt. I think he was speaking truth of his reality of what happened to him.”
Regarding future contact with Mother, Startup testified that the Child “does not want to ever
be with her again. . . .”
On cross-examination, Startup testified that she believed the Child. Startup
acknowledged that the Child lied at times, but when he did, it concerned non-abuse-related
matters such as whether he did his homework.
Herman then resumed his testimony. Herman described the disclosures the
Child had made to him. Herman testified that the Child told him that Mother “made him
penetrate her with his penis but he didn’t believe he ejaculated.” The Child told Herman that
Mother had an abortion, and the Child thought the pregnancy might have stemmed from his
rape.
Herman listed the Child’s symptoms: “Anxiety and depression, easily
overwhelmed, socially withdrawn, inappropriate social responses, slant effect, inability to
connect emotionally, averting eye contact, it could go on and on. And those could definitely
be explained by multiple traumas through the developmental period.” Herman stated that,
according to the records he had seen, the Child had suffered flashbacks in addition to
hallucinations. Herman stated that when he started seeing the Child, the Child was taking
Zoloft, Xanax, and Respiridone. Herman distinguished between flashbacks and
hallucinations, stating that the former is the re-experiencing of a traumatic memory, whereas
the latter is a false impression. With regard to the Child’s feelings concerning his rape, the
Child expressed a view that it felt good. Herman stated that this was not unusual for sexually
abused children.
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Herman described another disclosure from the Child:
He described [Mother] taking him to a home where he was sexually
abused in her presence by two men. And he described full anal intercourse.
And I was reviewing my notes back there, and I don’t have the note from the
last session with me, but he disclosed that one of the men during that episode
gave him a pill.
According to Herman, the Child stated that Mother was present for that incident, and that she
laughed and asked the Child “how he liked it.” Herman described another disclosure of the
Child’s:
He reports that, and I think this is a different occasion but I was never
able to be sure, his mother took him to the home of two men; they came and
got him and put something over his eyes and he was carried downstairs and
they made him get on his hands and knees and each man had intercourse with
him several times. He reported his mom and girlfriend were sitting on the
couch.
Herman also described how the Child wore a heavy sweater in his office when the
temperature did not justify such wardrobe. Herman stated that children with PTSD
sometimes want to protect themselves in this manner. Herman said schizophrenia also was
a possibility.
On cross-examination, Herman was questioned about the possibility of
schizophrenia being responsible for the Child’s disclosures, especially in light of previous
testimony about Father and his antisocial traits, and the genetic aspect of schizophrenia.
Herman stated that the onset of schizophrenia tends to be gradual and that it occurs fairly
rarely in a person of the Child’s age. The following exchange occurred on this subject:
Q. On the basis of what you know now can you rule out, and I feel a
double negative coming on but I’m going to say it, can you rule out that
Wyatt does not have schizophrenia and that his statements about sexual
abuse by his mother and others are hallucinations, delusions, illusions,
or some combination thereof?
A. I have no basis to establish or rule that out at this point.
Q. Further research needs to be done on the schizophrenia, I guess; is that
correct?
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A. Yes, I want to arrange, and again, I regret this has come out this way
because this wasn’t something I was preparing for court, that was to
remind me of a conversation that we had. But I had been wanting to
plan with the case manager and the grandparents another session just
about dealing with this, and it will probably be ruled out, but I want to
make sure.
Herman also distinguished age-appropriate beliefs from delusions. Herman stated, for
example, that children might well believe in Santa Claus, but this would not constitute a
delusion. Rather, a young child’s belief in Santa Claus would be “culturally congruent.”
Mother testified. Mother testified that William D. R. (“Father”) was the
Child’s father. Mother was with Father for about a year. Father left just before the Child
was born. Mother described Father’s personality, stating he “would get very angry
sometimes” and “was real anti-social.” For her part, Mother denied sexually abusing the
Child and stated that she had never seen anyone else abuse the Child. Mother testified that
she “would have killed” anyone who sexually abused the Child. Mother stated that she had
never been criminally charged with sexually abusing the Child.
Mother acknowledged that she had drank heavily. Mother had received
numerous DUIs, and was once sentenced to five months incarceration as a result of her
multiple DUIs. Regarding her alcohol abuse, Mother stated: “Yes, I messed up. I drank too
much and I highly regret that.”
On cross-examination, Mother testified that the Child shared certain antisocial
characteristics of Father. Regarding the Child’s allegations about her conduct, Mother
testified: “I mean, [the Child]’s scared and maybe he’s scared that I won’t stop drinking and
he don’t want me around him but he knows I didn’t abuse him.” Mother continued: “I’m on
an anti-depressant. I’ve thought about suicide myself because I’m so bummed out about this
with my son. And now these accusations, what do you think I’m going through because I
know I didn’t do it?” Mother stated that she had been sober for about two months. Mother
then testified concerning her girlfriend, Pamela Y. (“the Paramour”). Mother stated that the
Child had never seen Mother and the Paramour naked together in bed.
Mother had few unsupervised visitations with the Child from 2004 to 2011.
The Child had lived with his grandparents. When asked if she had any problems with the
way the Child was being raised by her mother and the Child’s step grandfather, Mother stated
that she did not, except that the grandparents allegedly were too hard on the Child by being
“very disciplinary.” Mother stated that she thought the Child would be well-taken care of
by the grandparents in terms of money, and would get a college fund. With respect to the
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Child’s disclosure regarding Mother’s abortion, Mother denied ever having had an abortion
in her life.
The Paramour testified. The Paramour denied ever sexually abusing the Child,
or seeing anyone else do so. The Paramour had lived with Mother on and off for eleven
years. According to the Paramour, Mother abused alcohol and the two of them had engaged
in bouts of domestic violence. The Paramour testified the two of them had fought in front
of the Child.
In February 2012, the Trial Court entered its Adjudicatory Order. In its order,
the Trial Court found the Child dependent and neglected by clear and convincing evidence.
Furthermore, the Trial Court found, by clear and convincing evidence, that the conduct
toward the Child constituted rape of a child, aggravated sexual battery, and incest, pursuant
to Tenn. Code Ann. §§ 39-13-522, 39-13-504, and 39-15-302, respectively. This conduct
constitutes severe child abuse under Tennessee law. The Trial Court found and held, in part:
1. This appeal presents the Court with a really troubling and novel
case. It, is troubling, of course, for the obvious reasons that horrific
allegations of abuse are at issue in the case. It is also novel in that the child
has not testified or given statements to the Court in the presence of counsel in
chambers because of the reasons previously stated by the Court at the hearing:
the child was considered unavailable by reason of his mental condition, which
was extremely fragile, as testified to by Scott Herman and Vicky Startup.
2. The Court finds that Wyatt [S.] is dependent and neglected
pursuant to T.C.A. 37-1-102(b)(12)(B)&(G). The standard to be applied her[e]
is the clear and convincing standard of proof, a more exacting standard than
a preponderance of the evidence standard, but it does not require such certainty
as beyond a reasonable doubt. Clear and convincing evidence is the degree of
evidence that would produce in the fact finder’s mind a firm belief or
conviction with regard to the truth of the allegation sought to be established.
In applying that standard to the proof here on the issue of severe abuse and
neglect the Court finds that Wyatt [S.] has been the victim of severe abuse and
neglect perpetrated by his mother, Lisa [M. S.], the Respondent, and others
with her knowledge.
3. The Court further finds that the conduct rises to the standard of
the statutory definition of Rape of a Child as defined by T.C.A. § 39-13-522,
Aggravated Sexual Battery as defined by T.C.A. § 39-13-504 and Incest as
defined by T.C.A. § 39-15-302.
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4. In reviewing the evidence that was submitted the Court found the
following to be important in reaching this decision:
a. Scott Herman testified that before he got medical records from other
providers he talked to the child and did therapeutic exercises so that he could
get a fresh impression of what was going on with Wyatt and so that his
opinions would be uninfluenced by those of the previous providers. Upon
preliminary testing Wyatt had a childhood abuse scale that was very elevated
and also self-devaluation scores that were very high. Shortly thereafter in an
interview with Scott Herman, or a session with Scott Herman, Wyatt disclosed
that his mother had raped him and that she had caused him to penetrate her.
In making this disclosure he was uncomfortable and reserved, as would be
expected of a child making such a disclosure. He also reported to Mr. Herman
that his mother had left him with a male friend who had sex with him. He also
reported that this had happened with two men or with random people he had
been left with. There was another disclosure, and Mr. Herman was unsure if
this was a repeated disclosure of the same incident, in which Wyatt described
two men in the home getting him out of bed and bringing him downstairs and
having anal intercourse with him and then one of the men saying he could go
back to bed. Wyatt said this was in the presence of his mother.
One of the other things Mr. Herman thought was important was when Wyatt
made such disclosures about abuse by his mother he looked down as if
ashamed or as if he was feeling guilty and said that when his mother raped him
it felt good. Scott Herman testified this is very normal of children who have
experienced prolonged abuse and normal with a sexualized child.
b. To Ms. Startup, consistent disclosures were made. The disclosure
regarding abuse by the mother was consistent with that made to Mr. Herman.
Wyatt also told Ms. Startup that when that occurred his mother had been
drinking. Wyatt also became very upset in one of the sessions when some
reference was made to Humpty Dumpty; he associated that with having oral
sex with a man and the “dumping” was the term for the man’s ejaculation into
the mouth.
c. Defense made cogent arguments that Wyatt’s disclosures were
attributable to early onset schizophrenia. Mr. Herman said that would need to
be ruled out, but he said that early onset schizophrenia would be extremely rare
and would not be of sudden occurrence or it would not come on suddenly as
this has apparently with Wyatt. Scott Herman also made references to the age
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appropriateness of delusions. He was questioned about whether these accounts
Wyatt has made could be delusions and he mentioned the age appropriateness
factor and that factor is important to the Court. The Court cannot understand
how Wyatt at the age of the disclosures would have had such a highly
developed knowledge of sexual activity and even developed a slang
vocabulary to refer to some sexual acts, such as his reference to “dumping.”
d. Both Mr. Herman and Ms. Startup have diagnosed Wyatt with post
traumatic stress disorder (PTSD). Mr. Herman said Wyatt may have a
complex type of PTSD. Ms. Startup referenced the Vanderbilt admission
where the same diagnosis was made of Wyatt.
These are some of the facts that lead the Court to believe that the
disclosures that Wyatt made are credible and there is clear and convincing
evidence in the case Wyatt is the victim of severe abuse and neglect.
IT IS THEREFORE ORDERED:
Pursuant to the above findings by the Court, the restraining order
barring contact with the Respondent, Lisa [M. S.], will remain in place
permanently and the grandparents, William and Patricia [E.], will retain
custody of Wyatt.
Mother appeals to this Court.
Discussion
Though not stated exactly as such, Mother raises two issues on appeal: 1)
whether the Trial Court erred in finding, by clear and convincing evidence, that the Child is
dependent and neglected; and, 2) whether the Trial Court erred in finding, by clear and
convincing evidence, severe child abuse in this case.
A finding of dependency and neglect must be based upon clear and convincing
evidence. Tenn. Code Ann. § 37–1–129 (Supp. 2012). Our review, however, is de novo
upon the record, accompanied by a presumption of correctness of the findings of fact of the
trial court, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d);
Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). As this Court discussed in In re: H.A.L.:
Tenn. R. App. P. 13(d) requires us to defer to the trial court's specific findings
of fact as long as they are supported by a preponderance of the evidence.
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However, we are the ones who must then determine whether the combined
weight of these facts provides clear and convincing evidence supporting the
trial court's ultimate factual conclusion.
In re: H.A.L., No. M2005–00045–COA–R3–PT, 2005 WL 954866, at *4, n.10 (Tenn. Ct.
App. April 25, 2005), no appl. perm. appeal filed, (discussing the clear and convincing
standard in a case involving a termination of parental rights). A trial court's conclusions of
law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc.
v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
Our Supreme Court has discussed the clear and convincing standard:
The “clear and convincing” standard falls somewhere between the
“preponderance of the evidence” in civil cases and the “beyond a reasonable
doubt” standard in criminal proceedings. To be “clear and convincing,” the
evidence must “produce in the mind of the trier of facts a firm belief or
conviction as to the allegations sought to be established.” Hobson v. Eaton, 19
Ohio Misc. 29, 399 F.2d 781, 784 n. 2 (6th Cir. 1968), cert. denied, 394 U.S.
928, 89 S. Ct. 1189, 22 L. Ed. 2d 459 (1969). “Clear and convincing evidence
means evidence in which there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof
& Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992). See e.g. In re Estate of
Armstrong, 859 S.W.2d 323, 328 (Tenn. App.1993).
Estate of Walton v. Young, 950 S.W.2d 956, 960 (Tenn. 1997) (quoting Fruge v. Doe, 952
S.W.2d 408, 412 n. 2 (Tenn. 1997)).
As pertinent to this appeal, a dependent and neglected child is one “[w]hose
parent, guardian or person with whom the child lives, by reason of cruelty, mental incapacity,
immorality or depravity is unfit to properly care for such child.” Tenn. Code Ann. § 37-1-
102 (b)(12)(B) (Supp. 2012). Additionally, a dependent and neglected child also is one
“[w]ho is suffering from abuse or neglect.” Tenn. Code Ann. § 37-1-102 (b)(12)(G) (Supp.
2012).
Tennessee law provides that, if the petition alleges dependency and neglect on
the basis of Tenn. Code Ann. § 37-1-102 (b)(12)(G), the trial court then “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 (a)(2) (Supp. 2012). However,
a trial court may make a finding of severe child abuse “if the court so finds regardless of the
grounds alleged in the petition. . . .” Id. Here, the Trial Court made a finding of severe child
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abuse in the form of rape of a child, aggravated sexual battery, and incest pursuant to Tenn.
Code Ann. §§ 39-13-522, 39-13-504, and 39-15-302, respectively. See Tenn. Code Ann. §
37-1-102 (b)(23) (2010).
A finding of severe child abuse, like a finding of dependency and neglect,
requires clear and convincing evidence. Dep’t of Children’s Servs. v. David H., 247 S.W.3d
651, 655 (Tenn. Ct. App. 2006). A finding of severe child abuse is significant, among other
reasons, in that it can serve as a basis for the termination of parental rights at a later
proceeding. Tenn. Code Ann. § 36-1-113 (g)(4) (Supp. 2012).
We first address whether the Trial Court erred in finding, by clear and
convincing evidence, that the Child is dependent and neglected. Initially, we observe that
this appeal presents facts of a shocking nature. The testimony of the two witnesses who
counseled the Child and heard his disclosures illuminates a litany of outrageous actions,
including rape, perpetrated against the Child by Mother and other adults around her. The
evidence additionally shows that the Child suffers from PTSD and severe depression.
The evidence in the record does not preponderate against the Trial Court’s
finding that the Child’s assertions as disclosed to Startup and Herman were true. These
disclosures had a consistency and persistence. There was no indication from the record that
the Child was coerced or pressured into making these specific disclosures. Furthermore, we
find it significant, as did the Trial Court, that the Child had such a breadth and scope of
knowledge about sexuality, including crude sexual terms like “dumping.” All of these facts,
combined with the Child’s severe emotional and psychological afflictions, leave us without
a substantial or serious doubt that the Child has been subjected to abuse and neglect.
On appeal, the crux of Mother’s argument is that the Child may in fact be
suffering from schizophrenia and thus could be fantasizing the depraved actions of Mother.
Speculation, however, will not suffice to overturn the detailed descriptions of abuse the Child
related to his counselors. While Herman acknowledged that the Child could be afflicted by
schizophrenia, this unlikely possibility does not negate the abundant accounts of abuse
contained in the record. Neither counselor testified that they believed the Child was
fabricating the abuse. We have discussed what evidence can support a finding, by clear and
convincing evidence, of sexual abuse against a child:
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
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and the development of psychological and emotional problems, as was present
in this case. See 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 Re Melanie T., 352 S.W.3d 687, 702 (Tenn. Ct. App. 2011).2
Mother also argues that it is significant that Mother denied abusing the Child.
The Trial Court rendered implicit credibility determinations regarding Mother. We do not
lightly overturn credibility determinations of trial courts. As our Supreme Court has
instructed:
When credibility and weight to be given testimony are involved, considerable
deference must be afforded to the trial court when the trial judge had the
opportunity to observe the witnesses’ demeanor and to hear in-court testimony.
Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997) (quoting
Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)). Because trial
courts are able to observe the witnesses, assess their demeanor, and evaluate
other indicators of credibility, an assessment of credibility will not be
overturned on appeal absent clear and convincing evidence to the contrary.
Wells v. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d 352, 360 (Tenn.
2011). We find nothing in the record that would serve to overturn the Trial Court’s implicit
credibility determination with respect to Mother.
The evidence in the record on appeal does not preponderate against the findings
of the Trial Court. We find, as did the Trial Court, clear and convincing evidence that the
Child is dependent and neglected.
We next address whether the Trial Court erred in finding, by clear and
convincing evidence, severe child abuse in this case. The Trial Court made a finding of
severe child abuse based on rape of a child, aggravated sexual battery, and incest pursuant
to Tenn. Code Ann. §§ 39-13-522,3 39-13-504,4 and 39-15-302,5 respectively.
2
Though neither party raises it, we are aware of State v. Ballard, 855 S.W.2d 557 (Tenn. 1993), and
its progeny, which restricts the use of expert testimony regarding PTSD in cases concerning child sexual
abuse. We believe Ballard is not controlling in this appeal because the witnesses testified to the specific
disclosures of abuse made by the Child and did not rely on generalized symptoms of PTSD.
3
Tenn. Code Ann. § 39-13-522 (Supp. 2012) provides:
(continued...)
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The evidence in the record on appeal supports a finding that Mother, among other
3
(...continued)
(a) Rape of a child is the unlawful sexual penetration of a victim by the defendant
or the defendant by a victim, if the victim is more than three (3) years of age but less than
thirteen (13) years of age. . . .
4
Tenn. Code Ann. § 39-13-504 (2010) provides:
(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.
5
Tenn. Code Ann. § 39-15-302 (2010) provides:
(a) A person commits incest who engages in sexual penetration as defined in §
39-13-501, with a person, knowing the person to be, without regard to legitimacy:
(1) The person's natural parent, child, grandparent, grandchild, uncle, aunt, nephew, niece,
stepparent, stepchild, adoptive parent, adoptive child; or
(2) The person's brother or sister of the whole or half-blood or by adoption.
(b) Incest is a Class C felony.
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transgressions, raped the Child when he was around age ten or eleven. This fits squarely
within the pertinent definition of severe child abuse. We find, by clear and convincing
evidence, that the Child was a victim of severe child abuse. We affirm the judgment of the
Trial Court in its entirety.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Lisa M. S., and her surety, if any.
_________________________________
D. MICHAEL SWINEY, JUDGE
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