state-of-tennessee-department-of-childrens-services-v-misty-byrd-in-the ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 15, 2011 Session
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES
v. MISTY BYRD
IN THE MATTER OF:
MORGAN R., DOB 12/14/02
BRADEN R., DOB 6/22/05
ZAKARY R., DOB 9/23/08
Direct Appeal from the Circuit Court for Tipton County
No. 6668 J. Weber McCraw, Judge
No. W2011-01249-COA-R3-JV - Filed February 17, 2012
This appeal arises out of dependency and neglect proceedings regarding three minor children.
The circuit court found all three children dependent and neglected, and it found the youngest
child had been severely abused. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.
J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Misty Byrd
Robert E. Cooper, Jr., Attorney General and Reporter, Shanta J. Murray, Assistant Attorney
General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of
Children’s Services
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
Misty Byrd (“Mother”) is the mother of three minor children: Morgan R. (dob
12/14/02), Braden R. (dob 6/22/05), and Zakary R. (dob 9/23/08). Mother was previously
married to Christopher R., the biological father of Morgan and Braden, but the couple
divorced in 2007. The biological father of Zakary is unknown.1
After her divorce from Christopher R., Mother and the children moved into her
mother’s home.2 However, on March 27, 2009, Mother married Ray Byrd, a four-time
convicted felon,3 and she and the children moved into Mr. Byrd’s home.
According to Mother, when Zakary was nine days old he began experiencing “fainting
episodes” where he would cry uncontrollably for approximately twenty minutes before his
lips would turn blue and he would “just go limp” and become “unresponsive.” Zakary
allegedly suffered from five or six of these “episodes,” and Mother sought medical attention
for him, but no cause for such was identified.
On May 4, 2009, Mother left Braden and seven-month-old Zakary in the care of Mr.
Byrd for “maybe an hour” while she retrieved Morgan from school. Braden had never been
left alone with Mr. Byrd “because he was so attached to [Mother]” and Zakary had only been
left alone with Mr. Byrd on one prior occasion for fifteen minutes. On May 4, Mother
allegedly returned home to find Zakary “acting perfectly fine[.]” However, moments later
when Mr. Byrd attempted to place Zakary in an exersaucer toy, Zakary allegedly suffered an
“episode” and “fell limp[,]” hitting his head on the toy while Mr. Byrd held his legs. Unsure
how to react, Mr. Byrd telephoned his grandmother who lived a short distance away.
Pursuant to his grandmother’s advice, a damp rag was placed on Zakary’s face. However,
when a bruise appeared on Zakary’s face, Mother and Mr. Byrd drove Zakary to Baptist
Memorial Hospital - Tipton (“Baptist”).
1
Mr. Byrd initially stated that there was a “very small chance” that he is Zakary’s father, but he also
stated that Zakary’s father is “a dopehead in Arkansas.” However, Mother testified that Mr. Byrd is one of
two potential fathers of Zakary.
2
From the time of his 2007 divorce from Mother until 2009, Christopher R. exercised alternating
weekend visitation with Morgan and Braden.
3
The felonies include sexual assault, burglary, and two counts of theft. With regard to the sexual
assault conviction, Mr. Byrd stated that “[the victim] was 17 and I was 22.”
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At Baptist, a head CT scan and a posterior to anterior (PA) chest x-ray were
performed. No rib fractures or evidence of traumatic injury was identified. According to
Mother, Baptist intended to discharge Zakary with pain medication, but Mother requested
that Zakary be taken to LeBonheur Children’s Hospital (“LeBonheur”) for further evaluation
concerning his “breathing episodes.”
Zakary was transported to LeBonheur via an ambulance, and Mother and Mr. Byrd
arrived some time later. At LeBonheur, a computerized tomography scan of Zakary’s
abdomen and pelvis was performed as well as a skeletal survey. The computerized
tomography scan “was significant for multiple right-sided rib fractures in various stages of
healing, multifocal liver lacerations, grade 2 lacerations with an anterior subcapsular
hematoma anterolaterally and superiorly.” The skeletal survey “was significant for healing
fractures, subacute and chronic involving the right ribs, right femur, right fibula, right radius
and right ulna.” LeBonheur physicians noted “multiple bruises, which are purple and red
along the right eye and forehead[,]” “bruising to the right side of the face and the top of the
right head[,]” “a laceration of the frenulum and bruising to the upper lip[,]” “some
subconjunctival hemorrhage in the right eye[,]” “a yellow brown bruise . . . on the left
cheek[,]” “yellow brown” bruising on the abdomen, and “an abrasion to the bottom of the
right foot.” LeBonheur physicians assessed Zakary’s injuries as “inconsistent with the
history that was given and [as] suspicious for nonaccidental trauma, most likely repeated
episodes of blunt force trauma.”
As a result of these injuries, Zakary was hospitalized for eight days in the LeBonheur
Pediatric Intensive Care Unit. He was referred to a LeBonheur social worker and later, to
the Tennessee Department of Children’s Services (“DCS”). After receiving the referral,
DCS Investigator Robin Gravely “immediately called law enforcement” and together with
Detective Chris Williams of the Tipton County Sheriff’s Office, began an investigation into
the circumstances surrounding Zakary’s injuries.4 A child and family team meeting was held
on May 7, 2009, in which it was determined that custody of Zakary should be transferred to
Mother’s sister, Chrystal Walk, and her husband, Robert Walk. Shortly thereafter, “due to
the severity of Zakary’s injuries,” DCS determined that Morgan and Braden should be placed
with their father.
On May 13, 2009, DCS filed a “Petition to Adjudicate Dependency and Neglect”
against Mother in the Tipton County Juvenile Court regarding all three children. That same
day, the juvenile court entered a “Protective Custody Order” finding probable cause to
believe that the children were dependent and neglected, and temporarily awarding custody
4
According to Mother, she and Mr. Byrd were criminally charged for Zakary’s injuries, but they were
acquitted after a jury trial.
-3-
of Morgan and Braden to their father, and of Zakary to Mr. and Mrs. Walk. Following a
hearing on October 14, 2009, the juvenile court entered an order on February 12, 2010,
adjudicating all three children dependent and neglected and finding that Zakary was the
victim of severe child abuse perpetrated by Mother, Mr. Byrd, or both. The court ordered
that temporary custody of Morgan and Braden remain with their father and that temporary
custody of Zakary remain with Mr. and Mrs. Walk. Mother was afforded supervised
visitation with the children, but Mr. Byrd was ordered to have no contact with them.
Mother appealed to the Tipton County Circuit Court, and a hearing was held on
February 3 and March 23, 2011. At the hearing, Lisa Piercey, MD, an expert in pediatrics
and child abuse who examined all three children in May 2009, testified on behalf of DCS.
Dr. Piercey described the patient history received as “somehow in the course of putting the
baby into an exer[saucer] . . .the baby blacked out and hit his head/face on the toy.” She
explained that she had reviewed the medical records from Baptist and LeBonheur; however,
she stated that she examined Zakary, conducted a follow-up skeletal survey, and rendered her
own report prior to reviewing such records. She then testified regarding the contents of her
medical report:
The [follow-up] skeletal survey . . . showed healed fractures of the
distal right radius and ulna . . . the right mid-femur . . . and the distal right tibia
and fibula . . . ; he also had healed fractures of two of his ribs in the back, No.
9 and 10. . . . [M]y assessment was: Severe child abuse, and I opined that the
proposed mechanism is completely inconsistent with the injuries seen.
Multiple fractures would not be encountered in the routine care of the child,
nor could the child have inflicted these injuries upon himself. I noted that this
trauma would require the force and co-ordination of an adult, and additionally,
there were no accidental or medical conditions to explain these findings.
She explained, concerning the metaphysical fractures of the radius and ulna, that “[t]he
metaphysis is an unusual spot to have fractures and typically conn[otes] a very specific
mechanism and that mechanism is almost always a pulling or a yanking.” Additionally, she
testified that “[t]hose types of fractures are not found from falling off something, rolling off
something, not in car wrecks, not in those kind of things; it’s a very specific mechanism. .
. . [I]t’s a very highly specific fracture for child abuse and is very, very rarely found in any
other circumstances.”
Regarding Zakary’s fractured ribs, she stated that “[p]osterior [rib] fractures are,
again, very highly uncommon in accidental mechanisms because of their relatively protected
location.” “[I]t’s widely supported that these are very, very highly specific fractures for
abusive trauma from front to back compression. . . . So again, those are supportive of very
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highly specific finding for abusive trauma.” She agreed that two vertebral fractures and
compression fractures of Zakary’s spine indicated on the LeBonheur MRI were “consistent
with severe child abuse” and that such fractures “are very classic in infants from when
they’re slammed down on their bottom[.]” Likewise, she stated that liver lacerations are
typically caused by “blunt force trauma to the abdomen . . . in infants and toddlers . . . from
getting sucker-punched in or kicked in the belly.” She noted that Zakary had a “tear of the
upper lip frenulum, which is very significant for inflicted trauma[,]” as such tears typically
occur “when [a child is] punched or hit in the mouth very forcefully” or is “forcefe[d.]” She
explained that “pinna bruising–bruising of the ear–is also very highly specific for inflicted
trauma.” Furthermore, she testified that “multiple fractures in any child, particularly infants
. . . is very highly specific for inflicted trauma.”
Concerning the plausibility of Zakary’s extensive injuries occurring from a single fall
from an exersaucer toy, Dr. Piercey explained that “the only thing that could be consistent
with the history provided was that of facial bruising[,]” but that “the facial bruising was still
very extensive based on the records reviewed.” Moreover, “[t]here was absolutely no history
to explain the rib fractures, the fractures of the arm, the fractures of the leg, and there was
notation in the LeBonheur records about him having . . . multiple liver lacerations, and there
was certainly nothing in the history to explain significant abdominal trauma.” Consistent
with her medical report, she testified that such injuries would not occur in the everyday
normal care and control of a child, and that neither Zakary, nor a three-year-old child, could
have inflicted the injuries.
Dr. Piercey testified that Zakary was tested for metabolic disorders “that would cause
bleeding tendencies [or] excessive injuries from minor trauma[.]” He was also tested for
“things like brittle bone disease and rickets, things that would cause his bones to break more
easily than the normal child, and he had no evidence of any of those.”
Dr. Piercey also explained the discrepancies between the findings of Baptist–which
revealed no internal injuries–and those of LeBonheur. She found the disparities “relatively
common [for] what we see from outlying hospitals.” She stated that Baptist made a “very
suboptimal examination” in performing only two radiologic studies: a head CT and a PA
chest x-ray. The Baptist head CT was normal, consistent with what was found at LeBonheur.
However, the chest x-ray was also considered normal at Baptist, and this, according to Dr.
Piercey is “a common mistake that people, facilities that aren’t used to seeing children make,
in that they don’t get films that would typically show rib fractures.” She stated that “infants
in particular, the angle of the ribs and those posterior fractures in the back are almost never
seen in an AP or PA front to back views . . . . So they didn’t see them in their one view at
Baptist Tipton, which doesn’t surprise me. That’s why we order additional views at
specialized children’s hospitals.”
-5-
In conclusion, Dr. Piercey assessed Zakary’s injuries as “severe physical abuse” based
on their being “potentially life-threatening or permanently life-altering.” She noted that the
injuries were in various stages of healing and that at least three separate injurious incidents
could be delineated. She found the injuries to be “completely inconsistent” with a short fall,
and instead maintained that the injuries were “very highly consistent with nonaccidental
trauma.”
Detective Chris Williams and DCS Investigator Robin Gravely also testified at the
hearing on behalf of DCS. Det. Williams described “some discrepancies” between the initial
statements he took from Mother and Mr. Byrd on May 5, 2009, and the written statements
he took from both on May 8. He stated that
Initially when we spoke to Mrs. Byrd she had told us that Mr. Byrd was
the father, matter of factly, and then, of course, when we spoke to him he said
that no, he wasn’t the father, and then when they came in for the May 8
interview again, who the father was, who the father wasn’t it was still up in the
air. That was one discrepancy.
The next would be during the initial statements when we first talked to
them, Mrs. Byrd - - actually both of them but Mrs. Byrd specifically, was
telling me where she had been and what she had done that day and she said
that she had gone to [Mr. Byrd’s grandmother’s] house [after picking up
Morgan from school] and that [Mr. Byrd’s grandmother] wasn’t home and so
she went home. And at the time I had no reason to question it. However, later
on May 8 after some additional information had come out, she changed her
story to, [Mr. Byrd’s grandmother] was home and that she had spent, I think
she said, fifteen minutes there and she was trying on a dress and a girdle.
He also testified that on May 5 and May 8, Mother and Mr. Byrd had described the distance
of Zakary’s fall as “approximately four to six inches,” which he stated was inconsistent with
their testimony at trial of falling “a significantly further distance[.]”5 Finally, Det. Williams
testified that he was told by Mother and Mr. Byrd that the exersaucer toy would have blood
on it, but that an examination of the toy, which had not been tampered with or touched,
revealed no “visible blood” at the alleged impact location and a swab test of that location
5
Det. Williams also stated that on May 5 he had Mother and Mr. Byrd demonstrate on video “exactly
how the fall happened” and he testified that these prior demonstrations differed from their in-court
demonstrations. A video of the prior demonstrations is included in the record before us. However, it
provides little assistance as the file containing Mr. Byrd’s demonstration cannot be opened, and Mother’s
demonstration contains no sound.
-6-
“revealed negative presence of blood.”6 Likewise, DCS Investigator Gravely testified that
she examined the exersaucer toy and saw no blood.
Mother testified that at the time of the incident she was working very little, one day
a week or less. She was Zakary’s primary caregiver, but when she was working, Zakary
stayed with an immediate family member. Mother recounted Zakary’s three to four
“episodes” prior to the May 4 incident, and then she described the events of May 4. Mother
did not work that day and had stayed home with the children. Zakary and Braden had been
“fussy,” but Zakary was sleeping when she left to retrieve Morgan from school. After
picking up Morgan, Mother went to Wal-Mart and then stopped by Mr. Byrd’s grandmother’s
house for “[p]robably [fifteen] minutes.” When Mother returned home after being gone
“maybe an hour[,]” Zakary was acting “fine[.]” Mother described Zakary’s alleged fall as
follows:
[Mr. Byrd] went to put him in the toy and he had another episode. . . . [H]e fell
over, fell limp, and he did fall on the toy. I didn’t black out, I saw him fall on
the toy.
So - - and then [Mr. Byrd] picked him up and then I got him from [Mr.
Byrd] and was trying to look at him to see if there was anything, and at the
time there was no bruising or anything but I was still concerned. . . . [W]e
didn’t see anything, other than the blood from his mouth[.]
....
[Mr. Byrd] was just holding him and he went limp and he was still partially
holding on - - when he slipped he still had like his feet . . . .
She testified that Zakary was “[m]aybe a couple” of feet above the exersaucer toy when he
fell. In her written statement, Mother stated that after the fall Zakary did not cry
immediately, but “[a]fter about [ten] seconds or so [he] started crying.”
When confronted with the evidence of Zakary’s injuries, Mother agreed that she
“ha[d] no idea” how such injuries were sustained. She stated that the only injury-causing
event she witnessed was Zakary’s fall from the exersaucer toy, that she had never injured her
children, and that she “[w]ould [not] stand for it . . . if [she] saw somebody trying to injure
[her] children.” Finally, Mother testified that she “know[s] for a fact [Mr. Byrd] didn’t
6
However, one “small head of a pin size” spot on the back of the toy’s seat was tested and did
indicate the presence of blood.
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[injure Zakary] because [she] was there[,]” and that she is “very positive that [Mr. Byrd] did
nothing to these children.”
Mr. Byrd also provided an account of the events of May 4:
I was placing him in a seat, toy ExerSaucer, and I had one hand around his
waist, the other one I had his ankle trying to guide his foot into the holes in the
seat, and he just fell over and went limp and it shocked me. I didn’t have
enough time to react to try to catch him, and we were probably a couple feet
up because I had just repositioned my arm to grab his leg with my hand.
....
It took a minute to realize what happened and as soon as I did I immediately
lifted him back up and he had a little bit of blood on his mouth. He never once
cried, never - - just had this look on his face like he wasn’t home and then it
didn’t take long until he was back.
Like Mother, Mr. Byrd testified that, during the fall, Zakary never left Mr. Byrd’s hands. Mr.
Byrd testified that he had never intentionally injured any child, and when asked to explain
the various stages of Zakary’s injuries, he simply responded that pre-May 4 injuries did not
exist.
Mr. Byrd’s May 8, 2009 written statement was also introduced into evidence, and it
provided further details that following Zakary’s fall, Mr. Byrd “felt like [he] was going to
black out because of the blood from [Zakary’s] mouth” and that the incident caused him to
“freak[] out.” Moreover, in his written statement, Mr. Byrd stated that “[e]veryone who has
watched [the children] has told us about incidents involving Braden and Zakary[,]” but he
insisted that he was “not trying to blame [Zakary’s injuries] on the other kids especially
Braden but we know we are not beating our baby.” He theorized that Zakary may have a
genetic condition which causes extremely fragile bones, and he alleged that Zakary has the
symptoms of such–an abnormally large head, bulging eyes, and pale skin.
Mother’s sister, Chrystal Walk, who had been caring for the children since May 2009,
testified that Zakary has had no broken bones or “episodes” since he had been in her home.
Christopher R. testified that he believes Mother’s home is unsafe.
At trial, Mother presented character witnesses. Mother’s aunt testified that she had
witnessed a “lifeless” Zakary as he was “coming out” of “one of his spells[.]” She also
testified that Mother was “very protective, loving” and “devoted” to her children, and that
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Mr. Byrd was “good to [the children.]” Mr. Byrd’s uncle similarly testified that Mr. Byrd
treated the children “very well” and that they were “always clean and happy, play[ing],
excited.”
Following the presentation of much evidence and the testimony of numerous
witnesses, the circuit court concluded that all three children were dependent and neglected,
and that Zakary was the victim of severe abuse. The circuit court specifically credited the
testimony of expert witness Dr. Lisa Piercey, and it found Mother’s and Mr. Byrd’s
testimony to be “neither reasonable nor credible.”
In its order, the trial court made the following relevant findings of fact and
conclusions of law:
As a matter of record, the Court found that the child, Zakary R[.],
sustained injuries. That there were injuries to Zakary’s full body, including,
but not limited to his head, face, ribs, wrists, legs, and that he had liver
lacerations and bruising.
The Court also found that the injuries sustained by the child were
inconsistent with the explanation given by [Mother] and her husband, Ray
Byrd. Further, the Court found that Mr. Byrd and [Mother] did not offer any
reasonable explanation for the severe child abuse and that the injuries
sustained by Zakary were very suggestive of non-accidental trauma.
The Court found that Zakary’s injuries were unexplained and were
uncommon for accidental trauma. The Court found that while Zakary’s facial
bruising could be consistent with a drop or fall of a short distance that struck
a toy, however, the same said drop or fall could not explain the other injuries
throughout Zakary’s full body.
The Court found that Zakary’s injuries occurred at the time when the
child was with both Mr. Byrd or [Mother] and as such the child’s injuries were
either caused by Mr. Byrd or [Mother] or that the injuries occurred during their
(Mr. Byrd’s and [Mother’s]) reckless conduct or their (Mr. Byrd and [Mother])
knowing disregard of such abusive actions.
Accordingly, the circuit court found that custody of Morgan and Braden should remain with
their father, and that custody of Zakary should remain with Mr. and Mrs. Walk. Mother was
allowed supervised visitation, and again, Mr. Byrd was ordered to have no contact with the
children. Mother timely appealed to this Court.
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II. I SSUES P RESENTED
Mother presents the following issues for review, as summarized:
1. Whether the circuit court7 erred in finding Zakary was injured while he was “with”
Mother;
2. Whether the circuit court erred in finding Mother was guilty of knowing or reckless
disregard for the abusive actions of Mr. Byrd;
3. Whether the circuit court erred in finding Zakary’s injuries were unexplained for
accidental trauma; and
4. Whether the circuit court erred in finding clear and convincing evidence that Morgan
and Braden were dependent and neglected.
For the following reasons, we affirm the decision of the circuit court.
III. S TANDARD OF R EVIEW
On appeal, a trial court’s factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d) (2010); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence
to preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999)). When the resolution of the issues in a case depends upon the truthfulness of
witnesses, the fact-finder, who has the opportunity to observe the witnesses in their manner
and demeanor while testifying, is in a far better position than this Court to decide those
issues. Mach. Sales Co., Inc. v. Diamondcut Forestry Prods., LLC, 102 S.W.3d 638, 643
(Tenn. Ct. App. 2002). “The weight, faith, and credit to be given to any witness's testimony
lies in the first instance with the trier of fact, and the credibility accorded will be given great
weight by the appellate court.” Id. We review a trial court’s conclusions of law under a de
novo standard upon the record with no presumption of correctness. Union Carbide Corp.
7
The juvenile court proceedings are part of the appellate record. However, pursuant to Tennessee
Code Annotated section 37-1-159, Mother received a de novo dependency and neglect hearing before the
circuit court. Mother appeals from the circuit court’s findings and order.
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v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol.
Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).
IV. D ISCUSSION
“A biological parent’s right to the care and the custody of his child is among the oldest
of the judicially recognized liberty interests protected by the due process clauses of the
federal and state constitutions.” In re Samaria S., 347 S.W.3d 188, 200 (Tenn. Ct. App.
2011) (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000);
In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993); In re Giorgianna H., 205 S.W.3d 508, 515 (Tenn. Ct. App.
2006)). This right, however, is not absolute. Id. (citing DCS v. C.H.K., 154 S.W.3d 586, 589
(Tenn. Ct. App. 2004)). “It continues without interruption only so long as the parent has not
relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination.”
Id. at 200-01 (citing Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002); In re M.J.B., 140
S.W.3d 643, 652-53 (Tenn. Ct. App. 2004)).
One situation in which the rights of a biological parent may be limited is where a child
has been deemed dependent and neglected. Id. at 201. A “dependent and neglected child,”
as relevant to this case, is a child:
Who is in such condition of want or suffering or is under such improper
guardianship or control as to injure or endanger the morals or health of such
child or others; [or]
....
Who is suffering from abuse or neglect[.]8
Tenn. Code Ann. § 37-1-102(b)(12)(F), (G). “‘Parents have a duty to provide, and children
have a corresponding right to be provided with a safe environment, free from abuse and
neglect.’” Id. (quoting In re R.C.P., M2003-01143-COA-R3-PT, 2004 WL 1567122, at *6
(Tenn. Ct. App. July 13, 2004)). “The primary purpose of dependency and neglect
proceedings ‘is to provide for the care and protection of children whose parents are unable
or unwilling to care for them.’” Id. (quoting DCS v. M.S., No. M2003-01670-COA-R3-CV,
8
In its brief to this Court, DCS also cites the dependency and neglect ground of “cruelty, mental
incapacity, immorality or depravity” of the person with whom the child lives. However, it does not appear
that this ground was raised in the trial court, and therefore, we will not consider it on appeal.
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2005 WL 549141, at *9 n.11 (Tenn. Ct. App. Mar. 8, 2005)).9
When the ground for a dependency and neglect petition is “abuse and neglect[,]”
Tenn. Code Ann. § 37-1-102(b)(12)(G), the court shall determine whether the parents have
committed severe child abuse.10 Tenn. Code Ann. § 37-1-129(a)(2). As relevant to this
case, “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 injury11 or
death and the knowing use of force on a child that is likely to cause serious
bodily injury or death;
....
(B) Specific brutality, abuse or neglect towards a child that in the opinion of
qualified experts has caused or will reasonably be expected to produce severe
psychosis, severe neurotic disorder, severe depression, severe developmental
delay or intellectual disability, or severe impairment of the child’s ability to
function adequately in the child's environment, and the knowing failure to
protect a child from such conduct;
(C) The commission of any act towards the child prohibited by § . . . 39-15-
402 [aggravated child abuse and neglect] . . . or the knowing failure to protect
the child from the commission of any such act towards the child[.]
Tenn. Code Ann. § 37-1-102(b)(23).
9
“‘Children who are found to be dependent and neglected are frequently removed from their
parents’[] custody and placed in the custody of [DCS]. If the parents’ conduct that precipitated the
dependent and neglect proceeding is sufficiently serious, a finding of dependency and neglect may be the
foundation for a proceeding to terminate the parents’ parental rights.’” In re Samaria S., 347 S.W.3d at 201
(quoting In re Gaven R., No. M2005-01868-COA-R3-CV, 2007 WL 2198288, at *7 (Tenn. Ct. App. July 23,
2007)).
10
The court may make a severe child abuse determination regardless of the grounds alleged in the
dependency and neglect proceeding. Tenn. Code Ann. § 37-1-129(a)(2).
11
“‘Serious bodily injury to the child’” includes, but is not limited to, second- or third-degree burns,
a fracture of any bone, a concussion, subdural or subarachnoid bleeding, retinal hemorrhage, cerebral edema,
brain contusion, injuries to the skin that involve severe bruising or the likelihood of permanent or protracted
disfigurement, including those sustained by whipping children with objects.” Tenn. Code Ann. § 39-15-
402(d).
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As stated above, the circuit court found that all three children were dependent and
neglected, that Zakary had been severely abused, and that Zakary’s injuries were either
caused by Mother or that she had recklessly or knowingly disregarded Mr. Byrd’s abusive
actions towards Zakary.
1. Actions of Mother
On appeal, Mother argues that the circuit court erred in finding that Zakary was either
injured while he was “with” her or that she had knowingly or recklessly disregarded Mr.
Byrd’s abusive actions. Additionally, she argues that the circuit court erred in finding that
Zakary’s injuries were unexplained for accidental trauma. Mother provides little “argument”
to support these assertions, but she seems to suggest that many of Zakary’s injuries were
either fabricated by DCS or erroneously misdiagnosed at LeBonheur. She points out that the
x-rays taken at Baptist indicated no injury, and she argues that she “could not be expected
to recognize injury when trained professionals could not discern same by x-ray.” She seems
to suggest that all of Zakary’s injuries stemmed from the alleged May 4 fall, and that her
actions in obtaining medical care for Zakary preclude a finding of knowing failure to protect
him.
A finding of severe child abuse must be supported by clear and convincing evidence.12
12
A finding of severe child abuse has serious ramifications:
A finding of severe abuse triggers other statutory provisions, including a
prohibition on returning the child to the home of any person who engaged
in or knowingly permitted the abuse absent consideration of various reports
and recommendations. Tenn.Code Ann. § 37–1–130(c). Even with such consideration,
No child who has been found to be a victim of severe child
abuse shall be returned to such custody at any time 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(d). Further, Tenn. Code Ann. §
37–1–130(g)(4)(A) provides that reasonable efforts to reunify a family are
not required to be made if a court has determined that a parent has
subjected the child or a sibling to severe child abuse.
The most serious consequence of a finding that a parent has committed
(continued...)
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See Dep’t of Children’s Servs. v. David H., 247 S.W.3d 651, 655 (Tenn. Ct. App. 2006)
(citing Dep’t of Children’s Servs. v. M.S. & J.S., No. M2003-01780-COA-R3-CV, 2005 WL
549141 (Tenn. Ct. App. Mar. 8, 2005) perm. app. denied (Tenn. Aug. 29, 2005)). However,
direct evidence that Mother actively engaged in or witnessed abuse of her children is not
necessary to find that she is guilty of severe child abuse and that the children are dependent
and neglected. In re H.L.F., 297 S.W.3d 223, 236 (Tenn. Ct. App. 2009). “[A] parent who
has not directly abused her own child may still be found to have committed severe child
abuse if she ‘knowingly exposed the child to, or knowingly failed to protect the child from,
conduct constituting severe child abuse.’” Id. (quoting In re R.C.P., No. M2003-01143-
COA-R3-PT, 2004 WL 1567122, at *6 (Tenn. Ct. App. July 13, 2004)).
“Knowing” and “knowingly” are not defined in Tenn. Code Ann. § 37-
1-102, or in any other statute pertaining to dependency and neglect
proceedings to terminate parental rights or in other civil proceedings involving
juveniles. “The words ‘knowing’ and ‘knowingly’ do not have fixed or
uniform meanings, and their meanings vary depending on the context in which
they are used or the character of the conduct at issue.”
A parent who is present when a child is abused but who fails to
intervene to protect the child has knowingly exposed the child to, or has failed
to protect the child from, abuse. The “knowing” requirement in Tenn. Code
Ann. § 37-1-102 (b)(21), however
is not limited to parents who are present when severe abuse
12
(...continued)
severe child abuse is that such a finding, in and of itself, constitutes a
ground for termination of parental rights. Tenn. Code Ann. §
37–1–130(g)(4) (“the parent or guardian has been found to have committed
severe child abuse as defined in § 37–1–102, under any prior order of a
court.”) The ground itself is proved by a prior court order finding severe
child abuse, and the issue of whether abuse occurred is not re-litigated at
the termination hearing.
M.S., 2005 WL 549141, at *10. Thus, if there is a finding of severe child abuse, under the
statutes, DCS is relieved of the obligation to use reasonable efforts to reunify the child with
the parent, it is more difficult for the parent to regain custody, and one ground for
termination of the parent's parental rights is effectively established.
In re Samaria S. 347 S.W.3d at 201.
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actually occurs. A parent’s failure to protect a child will also be
considered ‘knowing’ if the parent had been presented with
sufficient facts from which he or she could have and should
have recognized that severe child abuse had occurred or that it
was highly probable that severe child abuse would occur.
Accordingly, a parent’s conduct is “knowing, and a parent acts or fails to act
‘knowingly,’ when . . . she has actual knowledge of the relevant facts and
circumstances or when . . .she is either in deliberate ignorance of or in reckless
disregard of the information that has been presented to . . . her.”
Id. (internal citations and footnotes omitted).
On appeal, Mother contends that Zakary sustained injuries only on May 4, and that
these injuries were the result of an accidental fall from his exersaucer toy. The
overwhelming medical evidence in this case reveals otherwise. As set out above, LeBohneur
physicians found “multiple right-sided rib fractures in various stages of healing, multifocal
liver lacerations,” “healing fractures [of the] . . . right ribs, right femur, right fibula, right
radius and right ulna[,]” and “yellow brown” bruising of the cheek and abdomen. These
injuries were assessed as “inconsistent” with the reported exersaucer fall and “most likely
[from] repeated episodes of blunt force trauma.” Mother testified that she was present when
Zakary was injured on May 4, and it is undisputed that she was his primary caregiver during
the time period in which he sustained prior facial and abdominal bruises and multiple broken
bones.
Additionally, Dr. Piercey, whom the trial court specifically found credible, testified
that her follow-up skeletal survey revealed “healed fractures of the . . . right radius and ulna
. . . the right mid-femur[,] the [] right tibia and fibula[, and] two of his ribs[.]” She noted that
multiple fractures are “very highly specific for inflicted trauma[,]” and she opined that
Zakary’s injuries would not have occurred in his routine care, that Zakary nor his siblings
could have caused the injuries, and that the trauma would require the “force and co-
ordination of an adult.” She testified that the exersaucer toy could not have caused the
extensive injuries to Zakary, which occurred in at least three separate incidents, and she
found “absolutely no history to explain the rib fractures, the fractures of the arm, the fractures
of the leg, . . . [or the] significant abdominal trauma.” She noted that Zakary tested negative
for disorders causing “excessive injuries for minor trauma” and she ultimately assessed his
injuries as “severe child abuse.” She also testified regarding the discrepancies between the
findings of Baptist and LeBonheur. She was not “surprise[d]” that Baptist’s “suboptimal
examination” revealed no injuries because the x-ray views taken there “almost never” reveal
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the types of fractures Zakary sustained.
Based upon the abundant evidence before us, we affirm the trial court’s conclusion
that Zakary’s injuries were not simply the result of an accidental fall from a toy. Moreover,
considering the magnitude of Zakary’s injuries, and Mother’s near-constant contact with him,
we find, at a minimum, that Mother “should have recognized that severe child abuse had
occurred[.]” In re H.L.F., 297 S.W.3d at 236 (citations omitted). Accordingly, despite the
absence of direct evidence of abuse by Mother, we find clear and convincing evidence to
affirm the trial court’s finding that Zakary’s injuries occurred while he was with Mother, that
the injuries were caused by either Mr. Byrd or Mother, and that the non-abuser knowingly
or recklessly disregarded the other’s abusive actions.13
2. Morgan and Braden
On appeal, Mother also argues that the circuit court erred in finding Morgan and
Braden were dependent and neglected, as she maintains that there was no evidence presented
to support such a finding. Mother correctly points out that Christopher R. testified that
Morgan and Braden are doing well in school, and that the medical record from Dr. Piercey’s
examination of them in May 2009 revealed no evidence of physical or sexual abuse.
However, our finding that Zakary was severely abused is sufficient to render Morgan
and Braden dependent and neglected notwithstanding the apparent lack of physical abuse
toward them. By perpetrating severe abuse against Zakary or willingly placing her children
in a home where she should have recognized that abuse was occurring, Mother provided
“improper guardianship or control so as to injure or endanger the morals or health” of
Morgan and Braden, so as to render them dependent and neglected pursuant to Tennessee
Code Annotated section 37-1-102(b)(12)(F). (emphasis added). The severe abuse against
Zakary provides clear and convincing evidence to support this finding, and Mother’s
assertions to the contrary are without merit.
13
That Mother sought medical attention for Zakary does not preclude a finding of severe child abuse.
As the middle section of this Court noted in State, Dept. of Children’s Services v. H.A.C., No. M2008-01741-
COA-R3-JV, 2009 WL 837709, at *4 (Tenn. Ct. App. Mar. 26, 2009), “child abuse is not excused by
promptly seeking medical attention for the abused child.”
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V. C ONCLUSION
For the aforementioned reasons, we affirm the decision of the circuit court. Costs of
this appeal are taxed to Appellant, Misty Byrd, and her surety, for which execution may issue
if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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