In Re Markus E.

07/10/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 5, 2025 Session

IN RE MARKUS E.

Appeal from the Circuit Court for Davidson County

No. 15D2062 Phillip R. Robinson, Judge

No. M2024-00797-COA-R9-JV

In this dependency and neglect action, the juvenile court adjudicated the child dependent

and neglected in 2015 and found that the child was the victim of severe child abuse

perpetrated by one or both of his parents. The parents appealed that decision to the circuit

court. Because a termination petition was filed shortly thereafter, the circuit court stayed

the dependency and neglect appeal pending the outcome of the termination action. Both

parents’ parental rights were terminated pursuant to the severe child abuse ground in Tenn.

Code Ann. § 36-1-113(g)(4), but the Tennessee Supreme Court reversed that

determination. The dependency and neglect appeal then resumed in the circuit court, and

the Department of Children’s Services filed an amended dependency and neglect petition

alleging new facts. The mother filed a motion to dismiss the amended petition on the basis

that the court lacked jurisdiction to consider the petition, and she filed a motion to dismiss

the case, arguing that the Supreme Court’s decision in the termination case barred all claims

in the dependency and neglect case under the doctrine of res judicata. The circuit court

denied both motions but permitted the parties to pursue an interlocutory appeal. We reverse

the circuit court’s determination that the severe child abuse claim was not precluded, but

we affirm the court in all other respects.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed

in Part, Reversed in Part, and Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Nicholas Perenich, Jr., Nashville, Tennessee, for the appellant, Mark E., Sr.

Lorraine Wade, Smyrna, Tennessee, for the appellant, Nakesha M.

Jonathan Skrmetti, Attorney General and Reporter, J. Matthew Rice, Solicitor General,

Jordan K. Crews, Senior Assistant Attorney General, and Kathryn A. Ahillen, Assistant

Attorney General, for the appellee, Tennessee Department of Children’s Services.

David R. Grimmett, Franklin, Tennessee, guardian ad litem.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

The Tennessee Department of Children’s Services (“DCS” or “the Department”)

initiated this dependency and neglect action in 2015 in Davidson County Juvenile Court

after receiving a referral that seven-month-old Markus E., the child of Nakesha M.

(“Mother”) and Mark E. (“Father”), had suffered unexplained rib fractures and subdural

hematomas. In the dependency and neglect petition, DCS alleged that the child was abused,

severely abused, and dependent and neglected “due to severe physical abuse.” During the

child’s infancy, he had four regular caregivers: Mother; Father; the maternal grandmother,

Nadine M. (“Grandmother”); and a daycare worker, Carlithia Pryor (“Daycare Provider”).

Thus, in the petition, DCS alleged that Mother, Father, Grandmother, or Daycare Provider

perpetrated the abuse, severe abuse, and dependency and neglect.

On June 1, 2015, DCS voluntarily dismissed the petition as to Daycare Provider.

The matter then proceeded to trial against the remaining three defendants on July 28, 2015.

After hearing the matter, the juvenile court entered an order adjudicating the child

dependent and neglected and finding that he was the victim of severe child abuse

perpetrated by Mother and Father. The juvenile court made the following pertinent findings

of fact:

Infants do not simply spontaneously fracture twenty-two ribs. The

reality is that someone abused Markus on more than one occasion. None of

the four caregiving individuals provided testimony regarding any trauma to

Markus that could possibly have resulted in these injuries. Instead, and

incredibly, all of the remaining respondents in this case testified to hearing

what they described as a crackling sound coming from Markus’s rib area

while he was otherwise acting and behaving normally. This description, to

the court, appears both preposterous and contrived. It appears to the court to

be an attempt to cover up what truly was the cause of these multiple severe

injuries.

...

Clearly, in this case Markus is a dependent and neglected as well as

abused child given that his injuries have been diagnosed as child abuse and

frankly could only occur while in the possession of a parent or caregiver. . .

.

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...

It is true that factually, this court is unable to precisely pinpoint when

these injuries occurred or establish beyond a reasonable doubt precisely who

perpetrated the injuries upon then 7 month old Markus. However, that is not

required. The circumstantial evidence in this case is highly telling. Markus

suffered a total of twenty-two rib fractures during at least two occasions.

These fractures were diagnosed as child abuse. In addition, he suffered from

subdural hematomas which are concerning for inflicted trauma. . . .

...

Markus [E.] is found by clear and convincing evidence to be a

dependent, neglected, abused and severely abused child pursuant to T.C.A.

37-1-102. The perpetrator of the severe abuse is either his mother or his father

and the other parent[] willfully failed to protect Markus. Regardless of who

precisely perpetrated the trauma upon Markus, his parents failed to protect

him from ongoing trauma and instead developed a charade to conceal the

true cause of his injuries.

(Footnote omitted). Because the court believed that Grandmother did not fall within the

statutory definition of a parent or custodian, the court dismissed the charge of severe abuse

as to her.

Both Mother and Father sought a de novo appeal of the juvenile court’s ruling in the

Circuit Court for Davidson County. The Department also appealed, challenging the

juvenile court’s decision to dismiss the severe abuse charge against Grandmother. On

August 5, 2016, while the appeal of the dependency and neglect order was still pending in

the circuit court, DCS filed a petition in the juvenile court seeking to terminate both

parents’ parental rights. The circuit court stayed the dependency and neglect appeal

pending the outcome of the termination action.

After a trial on the termination petition, the juvenile court entered an order

terminating both parents’ parental rights pursuant to the severe child abuse ground in Tenn.

Code Ann. § 36-1-113(g)(4).1 That termination ground allows a court to terminate a

parent’s rights if he or she “has been found to have committed severe child abuse, as

defined in § 37-1-102, under any prior order of the court or is found by the court hearing

the petition to terminate parental rights . . . to have committed severe child abuse against

any child.” Tenn. Code Ann. § 36-1-113(g)(4) (2016). In turn, Tenn. Code Ann. § 37-1-

102(b)(27)(A)(i) (2016) defined “severe child abuse” as (1) “[t]he knowing exposure of a

child to or the knowing failure to protect a child from abuse or neglect that is likely to cause

1

The juvenile court also terminated Mother’s parental rights pursuant to the ground of substantial

noncompliance with the permanency plan. Our Supreme Court reversed that termination ground. In re

Markus E., 671 S.W.3d 437, 472-74 (Tenn. 2023).

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serious bodily injury or death,” and (2) “the knowing use of force on a child that is likely

to cause serious bodily injury or death.”

A panel of this Court affirmed the juvenile court’s termination decision, but the

Tennessee Supreme Court reversed. In reaching its conclusion, the Supreme Court focused

on the second definition of severe child abuse in Tenn. Code Ann. § 37-1-

102(b)(27)(A)(i)—whether the parents had knowingly failed to protect the child from

abuse. In re Markus E., 671 S.W.3d 437, 466-68 (Tenn. 2023) (“In re Markus I”). After

reviewing the record, the Court concluded as follows:

Here, the trial court made no finding on which parent inflicted Markus’s rib

fractures, or if both parents did. In this posture, the finding of severe child

abuse may be affirmed only if the proof shows that both parents’ failure to

protect Markus was “knowing,” i.e., both were aware of facts, circumstances,

or information that would alert a reasonable parent to take affirmative action

to protect the child, and yet they failed to act. We find no such proof in this

record.

Id. at 471. Thus, the Supreme Court held that the record did not clearly and convincingly

establish the termination ground of severe child abuse. Id. at 472. The Court noted,

however, that its holding did not preclude a finding of dependency and neglect in this case

because “dependency and neglect proceedings focus on the status of the child[] and do not

require a specific ‘knowing’ state of mind on the part of the parent or custodian.” Id. at

475.

Proceedings in the dependency and neglect de novo appeal then resumed in the

circuit court. The original petition filed in 2015 alleged two claims: (1) that Markus was

dependent and neglected under multiple definitions of that term in Tenn. Code Ann. § 37-

1-102(b)(13), including subsection (b)(13)(G), which defines a dependent and neglected

child as one who has suffered abuse or neglect; and (2) that both parents committed severe

child abuse under Tenn. Code Ann. § 37-1-102(b)(27).2 In September 2023, DCS filed an

amended petition alleging new facts related to the child’s current circumstances but adding

no new claims. Mother moved to dismiss the amended petition, arguing that the circuit

court lacked jurisdiction to consider it. According to Mother, an amended petition alleging

new facts must be filed in the juvenile court. The circuit court denied the motion, finding

that the court “must consider all of the child’s current circumstances which may have

2

When DCS filed the original petition in 2015, the definition of “dependent and neglected child” was

located in Tenn. Code Ann. § 37-1-102(b)(12), and the definition of “severe child abuse” was located in

Tenn. Code Ann. § 37-1-102(b)(21). Thus, the original petition includes citations to subsections (b)(12)

and (b)(21). By the time DCS filed the amended petition in September 2023, the statute had been amended,

and these definitions had been moved to subsections (b)(13) and (b)(27), respectively. See Tenn. Code Ann.

§ 37-1-102 (2023). Because no substantive amendments were made to these provisions, we will cite to the

subsections in effect when DCS filed the amended petition.

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changed since” the juvenile court adjudicated the child dependent and neglected in

September 2015.

Mother also filed a “Motion to Dismiss or to Declare Certain Issues Res Judicata.”

She argued that the Supreme Court’s decision in In re Markus I precluded relitigation of

both claims in the dependency and neglect de novo appeal under the doctrine of res

judicata. The Department opposed the motion and, at a hearing on August 21, 2023, the

circuit court agreed with DCS, ruling that res judicata did not apply to either claim. After

reevaluating its position, DCS filed a motion to alter or amend the res judicata ruling,

arguing that the In re Markus I decision barred the severe child abuse claim but not the

dependency and neglect claim. The circuit court entered an order denying the motion based

on its determination that the In re Markus I decision had no preclusive effect on either

claim. The court, however, granted the parties permission to pursue an interlocutory appeal

from its ruling on the preclusion issue and from its ruling that it had jurisdiction to hear

DCS’s amended petition.

The circuit court certified the following three issues for our review:

1. Does a Circuit Court which sits as the appellate court for Dependency and

Neglect Orders appealed from Juvenile Court have the jurisdiction to

have a trial on the merits on an Amended Petition for Dependency and

Neglect that was never originally filed or heard in Juvenile Court?

2. Can a trial court apply the doctrine of res judicata, collateral estoppel,

judicial estoppel, or claim preclusion in a pending Dependency and

Neglect proceeding where a final order exists in a Termination of Parental

Rights Proceeding[] where the parties and privies are the same in both

proceedings[.] And if so, does the Supreme Court Opinion in [In re

Markus I] have a preclusive effect on the pending Dependency and

Neglect proceedings at all?

3. Can the court apply the principles set out in T.C.A. 36-1-113(g)(4) in

cases where the Termination of Parental Rights was heard prior to the

Petition for Dependency and Neglect?

STANDARD OF REVIEW

We apply the same standard of review to the issues in an interlocutory appeal as we

would apply to those issues in an appeal as of right. Peck v. Tanner, 181 S.W.3d 262, 265

(Tenn. 2005). All of the issues presented in this interlocutory appeal involve questions of

law, which we review de novo with no presumption of correctness given to the trial court’s

decision. Kershaw v. Levy, 583 S.W.3d 544, 547-48 (Tenn. 2019) (stating that a court’s

ruling on judicial estoppel presents a question of law); In re Taylor B.W., 397 S.W.3d 105,

111 (Tenn. 2013) (stating that a court’s determination on the applicability of res judicata

or collateral estoppel presents a question of law); Chapman v. DaVita, Inc., 380 S.W.3d

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710, 712-13 (Tenn. 2012) (stating that the existence of subject matter jurisdiction presents

a question of law).

ANALYSIS

I. Whether the circuit court has jurisdiction to consider DCS’s amended petition

The first issue presented for our consideration concerns subject matter jurisdiction.

Subject matter jurisdiction involves a court’s authority to adjudicate a particular

controversy. Chapman, 380 S.W.3d at 712. “Subject matter jurisdiction depends on the

nature of the cause of action and the relief sought, and can only be conferred on a court by

the constitution or a legislative act.” Id. (citations omitted). In this case, Mother and Father

contend that the circuit court lacks subject matter jurisdiction to consider DCS’s amended

dependency and neglect petition because it was not first considered by the juvenile court.

Resolution of this issue requires us to interpret two statutory provisions: Tenn. Code

Ann. §§ 37-1-103(a)(1) and 37-1-159(a). When interpreting a statute, our role “is to assign

a statute the full effect of the legislative intent without restricting or expanding its intended

scope.” Frazier v. State, 495 S.W.3d 246, 248 (Tenn. 2016). We determine the legislature’s

intent by “look[ing] first and foremost to the text of the statute because the statutory

language is of primary importance.” Flade v. City of Shelbyville, 699 S.W.3d 272, 285

(Tenn. 2024). If a statute’s language is “clear and unambiguous, we derive the legislative

intent from the plain meaning of the statutory language and simply enforce the statute as

written.” Id. We construe statutes in a reasonable manner that “‘avoids statutory conflict

and provides for harmonious operation of the laws.’” Frye v. Blue Ridge Neuroscience

Ctr., 70 S.W.3d 710, 716 (Tenn. 2002) (quoting Carver v. Citizen Utils. Co., 954 S.W.2d

34, 35 (Tenn. 1997)); see also State v. Miller, 575 S.W.3d 807, 810-11 (Tenn. 2019).

Statutory construction presents a question of law that we review de novo without a

presumption of correctness. State v. Welch, 595 S.W.3d 615, 621 (Tenn. 2020).

Tennessee Code Annotated section 37-1-103(a)(1)(C) states that juvenile courts

have “exclusive original jurisdiction” to hear allegations that a child is dependent and

neglected. This Court has previously interpreted this statute as meaning that “once a

petition is filed in juvenile court to declare a child dependent and neglected, the juvenile

court has exclusive jurisdiction regarding custody of the child, and any subsequent order

concerning custody entered by [a circuit court or chancery court] . . . is void.” George v.

George, No. 02A01-9711-CH-00279, 1999 WL 252710, at *4 (Tenn. Ct. App. Apr. 28,

1999) (citing State of Tenn. Dep’t of Human Servs. v. Gouvitsa, 735 S.W.2d 452, 457

(Tenn. Ct. App. 1987)). In other words, a juvenile court—and only a juvenile court—must

decide a dependency and neglect matter before any other court may do so.

Once a juvenile court has adjudicated a dependency and neglect matter, Tenn. Code

Ann. § 37-1-159(a) provides that a circuit court obtains jurisdiction over the dependency

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and neglect proceeding upon a party’s timely appeal from the juvenile court’s final

judgment. A dependency and neglect appeal from the juvenile court to the circuit court

differs from this Court’s review of a trial court’s decision because the statute directs the

circuit court to “hear the testimony of witnesses and try the case de novo.” Tenn. Code

Ann. § 37-1-159(a). The de novo requirement is an important distinction because, although

the record of the proceedings in the juvenile court must be provided to the circuit court on

appeal, the circuit court’s decision is not limited to that record. Green v. Green, No.

M2007-01263-COA-R3-CV, 2009 WL 348289, at *8 (Tenn. Ct. App. Feb. 11, 2009).

Indeed, “the circuit court in a dependency and neglect proceeding may not rely

solely on the record made before the juvenile court, but . . . must try the case de novo by

hearing witnesses again and by rendering an independent decision based on the evidence

in the circuit court proceeding.” Green, 2009 WL 348289, at *8 (citing Tenn. Dep’t of

Children’s Servs. v. T.M.B.K., 197 S.W.3d 282, 289 (Tenn. Ct. App. 2006); In re M.J.B.,

140 S.W.3d 643, 651 (Tenn. Ct. App. 2004); In re M.E., No. M2003-00859-COA-R3-PT,

2004 WL 1838179, at *5 (Tenn. Ct. App. Aug. 16, 2004)). The requirement of a de novo

trial means that the circuit court is to conduct “‘[a] new trial . . . on both questions of fact

and issues of law . . . as if there had been no trial in the first instance.’” Id. (quoting Kissick

v. Kallaher, No. W2004-02983-COA-R3-CV, 2006 WL 1350999, at *3 (Tenn. Ct. App.

May 18, 2006)). This Court has previously held that, because “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” to determine both whether dependency and neglect circumstances

presently exist and what is in “the child’s best interest at the time of the decision.” Id. at

*10 n.13; see also In re Caleb L.C., 362 S.W.3d 581, 599 (Tenn. Ct. App. 2011).

The Department’s amended dependency and neglect petition contains the same

claims alleged in the original petition—that the child is dependent and neglected and is

the victim of severe child abuse perpetrated by the parents—stemming from the same

extensive, unexplained injuries that were discovered in January 2015. The new factual

allegations added by the amended petition relate to the developments in the termination

proceeding as well as the present circumstances of the child and the parents, e.g., that since

the conclusion of the termination proceeding, “the full extent of the damage to [the child]

from his prior abusive injuries have continued to manifest,” that the child does not know

the parents and has bonded with his foster family, that both parents have repeatedly denied

that the child suffered any abuse and have never “offered any plausible explanation” for

the child’s injuries, that the parents have been “resistant to recommended medical care and

other services” for the child, and that the parents “are no longer residing together as a

couple.”

Nevertheless, Mother and Father contend that the juvenile court must consider the

amended petition before the circuit court may do so. Each parent cites to caselaw to support

this argument. Father cites to In re Justin A.H., No. M2013-00292-COA-R3-CV, 2014 WL

3058439 (Tenn. Ct. App. June 7, 2014), and In re Hailey S., No. M2016-00387-COA-R3-

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JV, 2016 WL 7048840 (Tenn. Ct. App. Dec. 5, 2016). A review of these cases shows that

neither provides authority for Father’s argument. The court in In re Justin A.H. designated

its opinion a “Memorandum Opinion” which, pursuant to Tenn. Ct. App. R. 10, “shall not

be published, and shall not be cited or relied on for any reason in any unrelated case.” As

for In re Hailey S., the Tennessee Supreme Court designated that opinion as “Not for

Citation,” meaning it has “no precedential value” and “shall not be . . . cited by any judge

in any trial or appellate court division, or by any litigant in any brief,” except under specific

circumstances not applicable in this case. TENN. SUP. CT. R. 4(E)(1)-(2).

Mother cites to State v. McCaig, No. W2015-01842-CCA-R3-CD, 2016 WL

7732244 (Tenn. Crim. App. Dec. 19, 2016), for her contention that “a [c]ircuit [c]ourt

sitting as an appellate court cannot alter or amend the instrument that brought the case into

its jurisdiction because it[s] review is de novo.” There, a municipal court partially revoked

a defendant’s probation on a warrant that alleged two revocation grounds: (1) failure to pay

court costs and fines and (2) failure to keep appointments with his probation officer. Id. at

*1-2. The defendant appealed the municipal court’s decision to the circuit court for a de

novo hearing. Id. at *1. After conducting the de novo hearing, the circuit court revoked the

defendant’s probation based on a theft offense that was unrelated to the revocation grounds

alleged in the probation violation warrant. Id. at *3.

The defendant then appealed to the Court of Criminal Appeals, arguing that the

circuit court denied him due process by relying on a revocation ground not alleged in the

probation revocation warrant. Id. at *4. The Court of Criminal Appeals reversed, holding

that, “where the Circuit Court had jurisdiction in the probation violation matter solely

because of an appeal from the [municipal court], the trial judge was strictly limited to the

alleged probation violation grounds which were alleged in the [municipal court].” Id. Thus,

the court concluded that the circuit court could consider only the probation violation

grounds alleged in the petition filed in the lower court. Id.

The present case is distinguishable from McCaig. Notably, DCS’s amended petition

does not allege new grounds for dependency and neglect that are unrelated to those alleged

in the original petition—that Markus is dependent and neglected based on his extensive

injuries that were discovered in January 2015. Rather, the new facts alleged in the amended

petition relate to the current circumstances of the child and the parents. This is evidence

the circuit court should hear so that it can determine whether circumstances establishing

dependency and neglect exist at the time of the de novo hearing and, if appropriate, what

custody situation is in “the child’s best interest at the time of the decision.” Green, 2009

WL 348289, at *10 n.13.

For the foregoing reasons, we conclude that the circuit court correctly determined

that it has jurisdiction to consider DCS’s amended petition.

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II. Whether In re Markus I has a preclusive effect on both claims in this case

After concluding that it had jurisdiction to consider DCS’s amended petition, the

circuit court found that the decision in In re Markus I had no preclusive effect on either

claim in the dependency and neglect case. Mother and Father challenge this finding,

arguing that the decision in In re Markus I precluded both claims in the dependency and

neglect case. Therefore, the second issue certified for our review asks whether the doctrines

of judicial estoppel, res judicata, and collateral estoppel apply in this case. We will address

each in turn.

A. Judicial estoppel

Generally, “‘[u]nder the doctrine of judicial estoppel “a party will not be permitted

to occupy inconsistent positions or to take a position in regard to a matter which is directly

contrary to, or inconsistent with, one previously assumed by him, at least where he had, or

was chargeable with, full knowledge of the facts[.]”’” Kershaw, 583 S.W.3d at 548

(quoting Marcus v. Marcus, 993 S.W.2d 596, 602 (Tenn. 1999) (quoting Obion Cnty. v.

McKinnis, 364 S.W.2d 356, 357 (Tenn. 1962))). Tennessee courts apply judicial estoppel

to a limited set of circumstances—those “in which ‘a party has attempted to contradict by

oath a sworn statement previously made.’” Id. (quoting Cracker Barrel Old Country Store,

Inc. v. Epperson, 284 S.W.3d 303, 315 (Tenn. 2009)). In other words, judicial estoppel is

used to “‘uphold[] the sanctity of an oath.’” Id. 548-49 (quoting Sartain v. Dixie Coal &

Iron Co., 266 S.W. 313, 317 (Tenn. 1924)). For the doctrine to apply, the sworn statements

being compared “‘must be totally inconsistent—that is, the truth of one . . . must necessarily

preclude the truth of the other.’” Id. (quoting 28 AM. JUR. 2D Estoppel and Waiver § 68)

(footnote omitted).

In the present case, DCS argues, and Father concedes, that judicial estoppel does

not apply because there are no sworn statements that were later contradicted. Mother, on

the other hand, contends that the doctrine does apply. Though not a model of clarity,

Mother’s argument here seems to be that judicial estoppel applies because the amended

petition contradicts the testimony of DCS’s original expert witness, Dr. Brown, that she

could not opine that the child’s subdural hematomas established that the parents perpetrated

severe child abuse because she “could not testify that Markus’s hematomas were caused

by abuse.” In re Markus I, 671 S.W.3d at 469. From this argument, we discern that Mother

believes DCS’s allegations in the amended petition-- that a neuro-ophthalmologist and a

pediatric neuropsychologist recently diagnosed the child with “cortical vision impairment”

and a brain injury “associated with prior abusive head trauma”-- mean that DCS is now

offering contradictory statements from new experts to show that the subdural hematomas

establish that the parents committed severe child abuse.

Mother misconstrues the Department’s position. As discussed in detail below, DCS

has abandoned the severe child abuse claim against the parents based upon the doctrine of

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res judicata. Instead, as expressly stated in the amended petition, the evidence relating to

the child’s recent diagnoses is submitted “to evidence further manifestations of the . . . full

extent of the damage” to the child since the conclusion of the termination proceeding. In

other words, the new evidence is offered to show the child’s current circumstances—

evidence the circuit court must consider to determine whether the child is dependent and

neglected and what custody arrangement is in the child’s best interest at the time of the de

novo hearing. See Green, 2009 WL 348289, at *10 n.13. We conclude that judicial

estoppel does not apply because no sworn, contradictory statements made by DCS exist

and DCS is not occupying inconsistent positions vis-à-vis the initial dependency and

neglect case or the termination proceeding.

B. Res judicata and collateral estoppel

We next consider whether the severe child abuse and dependency and neglect claims

are precluded by res judicata or collateral estoppel. These two doctrines are very similar.

The doctrine of res judicata is often referred to as claim preclusion, and it “bars a second

suit between the same parties or their privies on the same cause of action with respect to

all issues which were or could have been litigated in the former suit.” Creech v. Addington,

281 S.W.3d 363, 376 (Tenn. 2009). Courts apply res judicata when “‘an existing final

judgment rendered upon the merits, without fraud or collusion, by a court of competent

jurisdiction, is conclusive of rights, questions[,] and facts in issue as to the parties and their

privies, in all other actions in the same or any other judicial tribunal of concurrent

jurisdiction.’” In re Shyronne D.H., No. W2011-00328-COA-R3-PT, 2011 WL 2651097,

at *4 (Tenn. Ct. App. July 7, 2011) (quoting Galbreath v. Harris, 811 S.W.2d 88, 90 (Tenn.

Ct. App. 1990)). Collateral estoppel, often referred to as issue preclusion, “has been

described as an extension of the doctrine of res judicata.” State v. Thompson, 285 S.W.3d

840, 848 (Tenn. 2009). “‘[I]t bars the same parties or their privies from relitigating in a

second suit issues that were actually raised and determined in an earlier suit.’” Patton v.

Est. of Upchurch, 242 S.W.3d 781, 787 (Tenn. Ct. App. 2007) (quoting Beaty v. McGraw,

15 S.W.3d 819, 824 (Tenn. Ct. App. 1998)). Collateral estoppel and res judicata have the

same goals: “to promote finality in litigation, prevent inconsistent or contradictory

judgments, conserve legal resources, and protect litigants from the cost and vexation of

multiple lawsuits.” Creech, 281 S.W.3d at 376; Thompson, 285 S.W.3d at 848.

1. Severe child abuse claim

Considering first the severe child abuse claim, we note that this Court has repeatedly

applied the doctrine of res judicata rather than collateral estoppel to preclude relitigation

of severe child abuse in a termination case “when such a finding had been made in a

previous dependency and neglect action.” In re Heaven L.F., 311 S.W.3d 435, 439 (Tenn.

Ct. App. 2010); see also In re Sawyer B., No. E2023-01497-COA-R3-PT, 2025 WL

1276693, at *7 (Tenn. Ct. App. May 2, 2025); In re Cayson C., No. E2022-00448-COA-

R3-PT, 2022 WL 17246337, at *15 (Tenn. Ct. App. Nov. 28, 2022); In re Deishun M., No.

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E2019-00777-COA-R3-PT, 2019 WL 6119307, at *7 (Tenn. Ct. App. Nov. 18, 2019); In

re Dakota C.R., 404 S.W.3d 484, 497 (Tenn. Ct. App. 2012). We are unaware of any

caselaw applying res judicata in the reverse situation—to preclude relitigation in a

dependency and neglect action when a severe child abuse finding was made in a previous

termination case—but we have found no authority suggesting that such application is

prohibited.3 Therefore, we will apply the res judicata analysis routinely applied by this

Court in termination cases where a claim of severe child abuse has been previously litigated

in a dependency and neglect case.

The party seeking to invoke the doctrine of res judicata must prove:

(1) that the underlying judgment was rendered by a court of competent

jurisdiction, (2) that the same parties or their privies were involved in both

suits, (3) that the same claim or cause of action was asserted in both suits,

and (4) that the underlying judgment was final and on the merits.

Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012). In this case, elements (1), (2), and

(4) are clearly met: the judgment in the termination of parental rights case was rendered by

a court of competent jurisdiction (the Tennessee Supreme Court), the parties in the

termination proceeding are the same as those in this dependency and neglect proceeding,

and the judgment in the termination case was final and on the merits.

Both parents argue, and DCS concedes, that the third element—whether “the same

claim or cause of action was asserted in both suits”—is also satisfied. We must agree.

Relying on Markus’s extensive injuries that were discovered in January 2015, DCS

asserted in both the original and amended petitions for dependency and neglect that Mother

and Father perpetrated severe child abuse as defined in Tenn. Code Ann. § 37-1-

102(b)(27). The Department asserted the same claim against both parents in In re Markus

I. Specifically, in In re Markus I, DCS asserted that the parents’ parental rights should be

terminated pursuant to Tenn. Code Ann. § 36-1-113(g)(4) because, based on the same

injuries discovered in January 2015, the parents perpetrated severe child abuse on Markus.

That termination ground relies on the same definition of severe child abuse that DCS relied

on in the original and amended petitions for dependency and neglect to claim that the

parents severely abused Markus. See Tenn. Code Ann. § 36-1-113(g)(4) (stating that a

parent’s parental rights may be terminated if the parent “has been found to have committed

severe child abuse as defined in § 37-1-102, under any prior order of a court or is found by

the court hearing the petition to terminate parental rights or the petition for adoption to

have committed severe child abuse against the child”).

3

This appears to be the specific question posed by the third issue certified for review. We interpret the

third issue as being related to the second issue, so we address them together.

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Furthermore, the Tennessee Supreme Court squarely addressed the severe child

abuse claim against both parents in In re Markus I, concluding that DCS failed to prove by

clear and convincing evidence that either parent committed severe child abuse against

Markus by knowingly failing to protect him from abuse. In re Markus I, 437 S.W.3d at

472. A review of the two dependency and neglect petitions shows that DCS did not assert

any new facts in the amended petition relating to whether the parents committed severe

child abuse against Markus in 2015, or at any time thereafter. Rather, the new facts alleged

in the amended petition relate to the parents’ and the child’s current circumstances that

have changed since the juvenile court adjudicated the child dependent and neglected in

2015, particularly that the parents no longer live together and that Markus has been

diagnosed with various medical conditions.

Based on the foregoing, we conclude that relitigation of the severe child abuse claim

is barred by res judicata and, therefore, we reverse the circuit court’s decision on that

claim.4

4

Although this Court typically applies the doctrine of res judicata to determine whether a severe child

abuse claim is precluded, one panel of this Court stated that “the issue is, in fact, one of collateral estoppel.”

In re Shyronne D.H., 2011 WL 2651097, at *5 n.14. The In re Shyronne D.H. court suggested that prior

reference to the matter being res judicata stemmed from the more general definition of res judicata—“‘a

matter adjudged; a thing judicially acted upon or decided.’” Id. (quoting Richardson v. Tenn. Bd. of

Dentistry, 913 S.W.2d 446, 459 n.11 (Tenn. 1995) (quoting BLACK’S LAW DICTIONARY 1174 (5th ed.

1979))). Even if collateral estoppel applied, the severe child abuse claim would still be precluded in this

case.

The party asserting collateral estoppel bears the burden of proving:

(1) that the issue to be precluded is identical to an issue decided in an earlier

proceeding, (2) that the issue to be precluded was actually raised, litigated, and decided

on the merits in the earlier proceeding, (3) that the judgment in the earlier proceeding

has become final, (4) that the party against whom collateral estoppel is asserted was a

party or is in privy with a party to the earlier proceeding, and (5) that the party against

whom collateral estoppel is asserted had a full and fair opportunity in the earlier

proceeding to contest the issue now sought to be precluded.

Mullins v. State, 294 S.W.3d 529, 535 (Tenn. 2009). The first two elements have been established. The

issue to be precluded—whether Markus’s injuries that were discovered in January 2015 establish that the

parents committed severe child abuse—is the same issue that was raised and litigated in In re Markus I. As

already discussed in this opinion, the termination ground at issue in In re Markus I relied on the same

definition of severe child abuse that is at issue in the dependency and neglect case. After the parties

extensively litigated that issue in In re Markus I, the Supreme Court concluded that the parents’ parental

rights could not be terminated because the evidence did not establish that the child’s injuries constituted

severe child abuse perpetrated by the parents. In re Markus I, 671 S.W.3d at 467, 472. The third element

has also been established because there is no dispute that the Supreme Court’s judgment has become final.

As for the fourth and fifth elements, the parties in the dependency and neglect case are the same as those in

the termination proceeding, and DCS acknowledges that it had a full and fair opportunity in the termination

proceeding to prove that the child’s injuries constituted severe child abuse perpetrated by the parents.

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2. Dependency and neglect claim

We must next determine whether the dependency and neglect claim is precluded by

the Supreme Court’s decision in In re Markus I. The Department and the guardian ad litem

contend that the circuit court did not err in concluding that In re Markus I had no preclusive

effect on the dependency and neglect claim. For the reasons discussed below, we agree.

Under Tennessee law, termination proceedings are separate and distinct from

dependency and neglect proceedings. See In re M.J.B., 140 S.W.3d at 651 (stating that “[a]

termination of parental rights proceeding is not simply a continuation of a dependent-

neglect proceeding”). The Supreme Court acknowledged the differences between the two

proceedings in In re Markus I:

There is some overlap between the two, particularly insofar as “severe child

abuse” can be pertinent in dependency and neglect cases as well as

termination of parental rights cases. Still, dependency and neglect

proceedings are “separate proceeding[s] involving different goals and

remedies. . . .” In re M.J.B., 140 S.W.3d at 651. “The primary purpose of a

dependent-neglect proceeding is to provide for the care and protection of

children whose parents are unable to or unwilling to care for them. The sole

purpose of the termination proceeding . . . is to sever irrevocably the legal

relationship between biological parents and their children.” Id.

In re Markus I, 671 S.W.3d at 474-75.

After acknowledging the foregoing distinctions, the Supreme Court clarified that its

decision did not preclude a finding of dependency and neglect in the proceedings pending

in the circuit court by emphasizing the distinction between severe child abuse under Tenn.

Code Ann. § 37-1-102(b)(27)(A), which included a “knowing” mens rea, and abuse under

Tenn. Code Ann. § 37-1-102(b)(13)(G), which includes no such mens rea.5 Id. In particular,

Tenn. Code Ann. § 37-1-102(b)(13)(G) provides that “dependent and neglected child”

means a child “who is suffering from abuse or neglect.” The statute further defines abuse

as existing

5

Both parents argue that the Supreme Court’s discussion of the dependency and neglect issue

constitutes dicta and is, therefore, irrelevant here. Even if this discussion constitutes dicta, it is relevant in

this case because “it is a strong indication of the supreme court’s view.” Franklin v. City of Memphis, Tenn.,

No. W2023-01142-COA-R3-CV, 2025 WL 1392464, at *4 (Tenn. Ct. App. May 14, 2025). Furthermore,

the Court’s discussion of the dependency and neglect issue provided specific guidance for the lower courts

on how to proceed with this case. As the Supreme Court has previously held, the lower courts “are not free

to disregard, on the basis that the statement is obiter dictum, the pronouncement of a superior court when it

speaks directly on the matter before it, particularly when the superior court seeks to give guidance to the

bench and bar.” Holder v. Tenn. Jud. Selection Comm’n, 937 S.W.2d 877, 882 (Tenn. 1996). The parents’

argument is unavailing.

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when a person under the age of eighteen (18) 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).

Father attempts to contradict the Supreme Court’s express acknowledgment that the

claims are different by asserting that a “knowing” mens rea does, in fact, exist in the

definition of “abuse.” According to Father, the Supreme Court’s finding that the evidence

was insufficient to prove that the parents committed severe child abuse by “knowingly”

failing to protect him from abuse precludes any finding that the parents “caused” Markus

to suffer from abuse. His argument here focuses on the legislature’s use of the term

“caused” in Tenn. Code Ann. § 37-1-102(b)(1). Because the statute does not define

“caused,” Father argues that “‘caused’ is best interpreted as ‘knowing’ as defined by the

Tennessee Supreme Court in [In re Markus I].”

We are not persuaded by this argument. First, the courts of this state have repeatedly

held that a parent’s state of mind is irrelevant for a finding of dependency and neglect

because “[t]he definitions of ‘abuse’ and ‘dependent and neglected child’ focus on the

child’s circumstances, not the state of mind of the caregiver.”6 In re S.J., 387 S.W.3d 576,

589 (Tenn. Ct. App. 2012); In re Tamera W., 515 S.W.3d 860, 872 (Tenn. Ct. App. 2016)

(stating that “a finding of dependency and neglect is not particular to one parent or the

other but simply questions the status of the children”). As the Supreme Court has explained,

“[t]his is because parents have a duty to provide, and children have a corresponding right

6

The guardian ad litem relies on this distinction to argue that In re Markus I had no preclusive effect

on the severe child abuse claim. In particular, he asserts that, if the circuit court finds that the child

“suffer[ed] from abuse or neglect” pursuant to Tenn. Code Ann. § 37-1-102(b)(13)(G), Tenn. Code Ann.

§ 37-1-129(b)(2) (2023) required that the court then determine “whether the parents or either of them or

another person who had custody of the child committed severe child abuse.” In other words, the guardian

ad litem argues, the circuit court “is not forced to identify which parent committed the abuse. Instead, [the

court] must determine whether the child’s status is that of a severely abused child.” We respectfully reject

this argument. Notably, nothing in the language of Tenn. Code Ann. § 37-1-129(b)(2) (2023) indicated that

its use of the term “severe child abuse” meant anything other than the definition provided in Tenn. Code

Ann. § 37-1-102(b)(27)(A). See Tenn. Code Ann. § 37-1-102(b) (2023) (providing that the definitions “used

in this part” applied “unless the context otherwise require[d]”). The Supreme Court interpreted that

definition in In re Markus I and concluded that DCS failed to present clear and convincing evidence

establishing that either parent committed severe child abuse. Thus, the issue of whether the parents

committed severe child abuse is precluded. If, on remand, the circuit court determines that the child is

dependent and neglected because he suffered abuse, the court may still satisfy the requirements of Tenn.

Code Ann. § 37-1-129(b)(2) by incorporating the Supreme Court’s finding in In re Markus I or, if

established by the evidence, by finding that “another person who had custody of the child committed severe

child abuse.” In re Markus I, however, precludes the circuit court from making a fresh determination that

“the parents or either of them” committed severe child abuse because that issue has already been fully

litigated.

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to be provided, a safe environment free from abuse or neglect.” In re Markus I, 671 S.W.3d

at 475. Second, the rules of statutory construction require us to presume that, in using

“caused” to define “abuse” while using “knowing” to define “severe child abuse,” the

legislature purposely chose to use different terms to define different concepts. See State v.

Marise, 197 S.W.3d 762, 766 (Tenn. 2006) (“When construing a statute, courts are to give

effect to the ordinary meaning of the words used in the statute and presume that each word

used was purposely chosen by the legislature to convey a specific meaning.”). Lastly,

because the definition of “abuse” includes injuries “caused by brutality, neglect or other

actions or inactions of a parent, relative, guardian or caretaker,” it includes conduct that

may not have been “knowing.” Tenn. Code Ann. § 37-1-102(b)(1); cf. In re Markus I, 671

S.W.3d at 444 (holding that “conduct is considered ‘knowing,’ and a person is deemed to

‘knowingly’ act or fail to act, when he actually knows of relevant facts, circumstances or

information, or when he is either in deliberate ignorance of or in reckless disregard of such

facts, circumstances, or information presented to him”).

In sum, based on our review of the Supreme Court’s opinion in In re Markus I and

the relevant statutes, we conclude that the severe child abuse claim and the dependency

and neglect claim are different claims. The relevant portions of the Supreme Court’s

decision in In re Markus I concerned only whether the parents perpetrated severe child

abuse against Markus. The Court made no findings or conclusions regarding whether he is

a dependent and neglected child. We, therefore, affirm the circuit court’s determination

that In re Markus I had no preclusive effect on the dependency and neglect claim.7

CONCLUSION

The circuit court’s decision that In re Markus I has no preclusive effect on the severe

child abuse claim is reversed, and the court’s decision is affirmed in all other respects. The

case is remanded for further proceedings consistent with this opinion. Costs of this appeal

are assessed against the appellants, Mark E., Sr., and Nakesha M., for which execution may

issue if necessary.

/s/ Andy D. Bennett

ANDY D. BENNETT, JUDGE

7

We note that both parents raise constitutional issues in their appellate briefs. Father’s argument

focuses on the language in Tenn. Code Ann. § 37-1-102(b)(1) allowing a court to find a child dependent

and neglected due to abuse by a relative or caregiver. He contends that removing custody from the parents

based on a finding that Markus is dependent and neglected due to a non-parent’s abuse is unconstitutional

because “involuntary removal from a parent’s custody” requires “a finding that the parent is unfit.” Mother

argues that it is unconstitutional for parents to lose their rights to the care and custody of their children

without a “knowing” requirement. This case is before us as an interlocutory appeal filed pursuant to Rule

9 of the Tennessee Rules of Appellate Procedure. Under that rule, our review is “‘limited to those questions

clearly within the scope of the issues certified for interlocutory appeal.’” Binns v. Trader Joe’s East, Inc.,

690 S.W.3d 241, 246 (Tenn. 2024) (quoting Metro. Gov’t of Nashville & Davidson Cnty. v. Tenn. Dep’t of

Educ., 645 S.W.3d 141, 147 (Tenn. 2022)). The constitutional issues raised by the parents are not among

the issues certified for our review. We, therefore, decline to address those issues.

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