In Re Avery H.

01/20/2026

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 3, 2025

IN RE AVERY H.

Appeal from the Juvenile Court for Madison County

No. 59-53-702 Christy R. Little, Judge

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No. W2024-01763-COA-R3-PT

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This appeal involves the termination of a mother’s parental rights to her special needs child.

The trial court found by clear and convincing evidence that several grounds for termination

were proven and that termination is in the best interest of the child. We reverse one ground

for termination but otherwise affirm and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in

Part, Affirmed in Part, and Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which THOMAS R.

FRIERSON, II, and JEFFREY USMAN, JJ., joined.

Alexander David Camp, Jackson, Tennessee, for the appellant, Kierria H.

Lanis L. Karnes, Jackson, Tennessee, Guardian ad Litem.

OPINION

I. FACTS & PROCEDURAL HISTORY

This case involves heartbreaking child abuse. The child at issue, Avery, was born

to Kierria (“Mother”) and her husband (“Father”) in March 2018. Avery was their first

child. He was born premature at 29 weeks gestation and weighed only four pounds at birth.

Avery was discharged from the neonatal intensive care unit to go home with his parents on

May 30, 2018.

Just two weeks later, in June 2018, Father transported Avery to the hospital

emergency department in Jackson, Tennessee. According to Mother, she and Father

became concerned because Avery was breathing but would not take a bottle and had

become unresponsive. Doctors determined that Avery was suffering from hypothermia,

subarachnoid hemorrhage, and subdural hematoma (brain bleed). Avery was transported

by helicopter to LeBonheur Children’s Hospital in Memphis. While Avery was at

LeBonheur, a skeletal survey revealed fractures to his sixth, seventh, and eighth ribs, as

well as a left distal femur fracture, left proximal tibia fracture, and a left distal radius

fracture. The radius fracture appeared to be a week or so old, while the femur and tibia

fractures appeared to be new. Avery’s subdural hemorrhages were also found to be

“multiple and in various stages of resolution.” Ophthalmology was also consulted and

diagnosed Avery with bilateral retinal hemorrhages. These injuries were deemed

“suspicious for more than one episode of nonaccidental trauma.” Mother and Father denied

any knowledge as to how Avery sustained his injuries.

After spending about a week at LeBonheur, Avery was deemed stable for discharge.

The hospital’s Child Advocacy Resource and Evaluation Services team was consulted and

arranged for a safe disposition with Mother’s aunt (“Aunt”). Avery was discharged into

her care on June 21, 2018, with various medications and a discharge plan to follow up with

numerous consultations in the days and weeks ahead, including follow up appointments

with orthopedic surgery, ophthalmology, neurology, neurosurgery, and the Child

Advocacy Resource and Evaluation Services clinic. That same day, an investigator from

Child Protective Services and the Department of Children’s Services filed an affidavit in

support of a protective custody order in the juvenile court of Madison County, describing

Avery’s extensive injuries and alleging that there was probable cause to believe he was

dependent and neglected and in need of immediate protection based on the exigent

circumstances. The juvenile court entered a protective custody order the same day, finding

probable cause to believe that Avery was dependent and neglected. The order found that

it was contrary to Avery’s welfare to remain in the home of his parents and brought him

into the protective jurisdiction of the court, awarding temporary legal custody to Aunt.

Avery has been in Aunt’s care ever since. A dependency and neglect and severe

abuse proceeding was commenced but was continued numerous times due to efforts to

obtain voluminous medical records from Avery’s treatment providers and due to the

possibility that criminal charges might be brought against his parents. The court also

addressed issues regarding domestic violence between the parents. The parents had some

supervised visitation with Avery. Mother gave birth to another child in March 2019.

An adjudicatory and dispositional hearing was finally held in November 2020. Over

the objection of Avery’s guardian ad litem, the juvenile court accepted a stipulation of

dependency and neglect in lieu of seeking a finding of severe abuse. Thus, the order stated

that the parties stipulated that Avery was dependent and neglected, that there was no less

drastic alternative to removal, and that it was contrary to his best interest to remain in his

parents’ custody. The order included factual findings that DCS received a report of alleged

physical abuse when Avery was three months old and was transported from the hospital in

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Jackson to LeBonheur with hypothermia, subdural hematoma, and subarachnoid

hemorrhage. It stated that LeBonheur determined Avery also suffered from fractures to his

ribs, femur, tibia, and radius, and he had bilateral retinal hemorrhages, with these injuries

being suspicious for more than one episode of nonaccidental trauma. The order stated,

“The Court finds that the child is a victim of severe abuse but does not find the child was

a victim of severe abuse perpetrated by the parents as the perpetrator cannot be identified.”

It stated that temporary custody would remain with Aunt and her husband pending further

orders of the court. However, the order also stated that “this case shall be closed” and that

DCS was relieved from further responsibility in the matter. The order stated that Avery’s

guardian ad litem would “remain appointed to this matter.”1

One month later, on December 3, 2020, Avery’s guardian ad litem filed a petition

to terminate the parental rights of Mother and Father. By that time, Avery was two and a

half years old. The petition alleged the following grounds for termination of parental

rights: persistent conditions, severe abuse, and failure to manifest an ability and willingness

to assume custody. It also asserted that termination was in the best interest of Avery.

Counsel was appointed for Mother and for Father; however, neither filed an answer to the

termination petition.

The termination trial began on September 7, 2021. Avery was three years old by

then. Mother had given birth to a third child just three months before trial, and she and

Father brought their two-year-old child to court with them due to an issue with childcare.

The child was allowed to play in the court’s “Safe Haven room” while the trial proceeded.

The trial court heard testimony from Mother and the Executive Director of CASA for

Madison County. Mother described the events that occurred on the date of Avery’s visit

to the emergency department. She testified that she and her female cousin went to pay bills

together earlier that day and that Avery “was fine.” Mother testified that Father returned

from work late that evening and tried to feed Avery a bottle while she took a shower, but

he would not take it. She testified that Avery “wasn’t moving at all” and became

unresponsive, although he was still breathing. Mother testified that she then directed Father

to take Avery to the hospital, and she stayed home to pray over the phone with her pastor.

She said that no one had been babysitting Avery and that she and Father were the only ones

to care for him that day and the day before. Mother testified that she had taken Avery to

three doctor appointments earlier that week, for a check of his heart, a well-child visit, and

because he was spitting up, and “he was perfectly fine” so she never knew that he was

suffering from these injuries. Mother denied that she or Father abused Avery.

Mother testified that she and Father talked with DCS at the hospital and agreed that

Avery would be placed in the custody of her aunt until further court orders. She recalled

attending permanency plan meetings with DCS and being asked to attend Avery’s doctor

1

There was some delay with the entry of the written order from this hearing, and it was not entered

until March 2021.

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appointments and twice-weekly therapy sessions, in order to gain an understanding of his

medical needs. She testified that she and Father “made some efforts to go” but had a baby

to care for and admittedly arrived late for the few appointments they did attend due to

Father’s work schedule. Mother stated that they had attended “two or three” medical

appointments and “a few” therapy sessions. She testified as to various excuses for her

failure to attend the appointments, including that she was not informed of the dates, work

schedules, etc. Mother testified that Father had been in jail recently for driving without a

license and failure to appear. She admitted that he had questioned his paternity of Avery

for a period of time because, Mother said, “I told him out of anger when me and him was

upset with each other.” She admitted to having domestic violence issues with Father but

claimed that it had only occurred once, before Avery was born.

When asked what she had done to bond with Avery over the past three years, Mother

said she would “check up on him” and had attempted to plan events for his birthdays,

although conflicts with Aunt’s schedule prevented them from occurring the past two years.

She said that she last saw Avery in April 2021, five months before trial, before she gave

birth to her third child. Mother’s wages had been garnished for child support when she

was working a regular job. However, she was not currently working aside from delivering

for Doordash and Instacart, and her ability to do that was limited due to having an infant.

The family was receiving food stamps and lived in public housing. They had one vehicle,

and Mother drove Father to his job and picked him up each day. Mother testified that she

and Father were fully capable of raising Avery. She testified that there was nothing

stopping her from regaining custody, nothing wrong with her parenting of her other two

children, and she was not aware of any potential risk to Avery if he was returned to her.

However, when asked how Avery’s speech was developing, Mother admitted she did not

know. She did not know how Avery was progressing intellectually either.

The trial court also heard testimony from Hannah Snowden, the Executive Director

of Madison County CASA. She oversaw CASA volunteers, including the volunteer

assigned to Avery’s case, who happened to be a former nurse and took great interest in

Avery’s medical needs and care. Ms. Snowden communicated with the volunteers weekly

and knew what was happening in each of their cases, and she identified numerous CASA

reports that had been created regarding Avery since his birth. She testified that Avery went

home from LeBonheur with Aunt, and Aunt had taken very good care of him from the

beginning. She explained that Aunt fully met all of Avery’s medical needs, taking him to

all of his doctor appointments and physical therapy sessions. The CASA reports noted

Avery’s multitude of specialists and medical appointments and stated that Aunt was

dedicated to getting him to all of them, even though it was “a big job” and very time

consuming. The reports indicated that Aunt was doing “a remarkable job juggling Avery’s

appointments and needs.” She was described as “so diligent and conscientious in her care

of Avery.” Ms. Snowden testified that CASA had concerns “throughout the life of the

case” about the fact that “there were not consistent visits between Avery and his parents,”

and child support was not being consistently paid. She said CASA also had concerns about

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safety in the parents’ home.

According to the reports identified by Ms. Snowden, Avery’s CASA volunteer

reported that her greatest concerns were related to the questions still surrounding what

happened to Avery and how he sustained his significant injuries. She noted, “No one seems

to have adequately answered that question.” The volunteer stated in her report that Avery

had overcome a lot in his short life and that “[n]o one knows why he has had to suffer.”

By the time Avery reached a year old, the CASA reports stated that it was “heartening to

see” how much progress he had made living with Aunt, he had “finally reached a very

stable place medically,” where he was eating well and gaining weight, he had formed a

strong attachment to Aunt, and it was “troubling to think” about removing him from the

only home and stability he had known. The report noted that Avery’s parents never took

him to his “continual medical appointments” or provided care for him thereafter. Another

CASA report stated that Mother and Father’s visits were intermittent, they did not appear

to be making the effort needed to adequately form an attachment, and, in the volunteer’s

opinion, they should be required to begin attending appointments to learn to care for him.

Avery’s volunteer reported that Aunt was driving many miles to appointments in Memphis

and Nashville and knew his history “backward and forward because she has lived it,” while

Mother and Father knew very little about his care. Ms. Snowden testified that CASA was

only on the case until it was closed by DCS, and the last CASA report that was reviewed

was from August 2019. She closed by stating that Mother and Father had no meaningful

relationship with Avery during the time CASA had the case.

At the conclusion of the first day of trial, which, again, was in September 2021, the

case was continued to a second trial date in January 2022. However, the parties did not

actually return for the next day of trial until over a year later, in March 2023. By that time,

Avery was five years old. Mother had given birth to a fourth child. She brought her three

youngest children (ages 4, 1, and 6 months) to court, stating that she could not find a

babysitter. The trial judge emphasized that the case had already been reset due to issues

involving an attorney being ill and an inability to get a court reporter, and she desired to

proceed in the interest of achieving permanency for Avery. Mother and Father were sworn

in as witnesses in order to testify. However, the transcript reflects that the children were

crying, and Mother and Father insisted on another continuance so that they could

participate without the children present. The guardian ad litem objected, but the trial judge

reset the termination trial for another date. However, Aunt was present and was permitted

to give very brief testimony to provide a quick update on Avery’s status. She testified that

Avery was doing fine and was attending special education pre-K. She said he was receiving

occupational therapy, speech therapy, and physical therapy. Aunt testified that Avery’s

speech was delayed and that he was only saying a few words. She testified that Avery also

has a chromosomal disorder called Fragile X syndrome, which causes intellectual disability

and causes him to be very hyperactive. She explained that Avery understands things he is

told, such as if he is instructed to bring his cup or put on his shoes. However, she said he

had not yet mastered potty training and just could not comprehend it yet. After her brief

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update, the trial judge directed the parties to return two months later, in May 2023.

Unfortunately, the May 2023 trial date did not proceed as planned either. The final

day of trial was not held until April 2024. In the meantime, Father and Mother had

divorced, and he had voluntarily surrendered his parental rights to Avery. Father had

obtained primary custody of the parties’ three youngest children in the divorce, and an

order of protection had been entered against Mother. According to the guardian ad litem,

the three siblings living with Father were having visits with Avery. Avery was six years

old by that time and in kindergarten. The trial court heard testimony from Mother and

Aunt.

Regarding Avery’s injuries, Mother still maintained, “I don’t know what happened.”

However, she believed Avery would not be in jeopardy if placed in her care. She was not

currently exercising parenting time with her other children due to the order of protection

but planned to begin once it expired. She testified that she had been dealing with a criminal

matter as well and “went to jail for a night” because Father called the police on her, but

rather than explaining the situation, Mother testified that she was going to “stay silent.”

Mother testified that she was employed part-time at a hospital as a “housekeeper.” She

explained that she was only working part-time because she had “a lot of court dates”

between her divorce proceeding, her criminal matter, and the termination case. She was

still living in the same apartment in public housing. However, her rent was not current,

and she had been in court for eviction proceedings the day before. She said the matter was

dismissed because of an issue with the written notice, but Mother admitted that she had not

paid rent for three months. She had been searching for another place to live but did not

have any definite plan yet. Mother acknowledged that once she was served with the proper

paperwork at her current apartment, she would only have ten days to move. If she could

not secure housing with a landlord she had contacted, she planned to stay with church

members.

Mother admitted that Avery had been financially supported by Aunt and her

husband since he was three months old. She had paid some child support over the years

and her wages were currently being garnished, but she still had an arrearage at the time of

trial. She admitted that each time she had switched jobs there were periods of no support

in between. When asked if she had taken any Christmas gifts or birthday gifts to Avery in

the last year, Mother said no. She claimed that “a suggestion” had been made early in the

termination proceeding that she “should hold off” on visiting Avery until the case was

resolved because the outcome was uncertain and visiting might confuse him. However,

Mother admitted that Aunt had reached out to her at Christmas in 2022 and said that she

had gifts for Mother’s three younger children and asked about getting the kids together to

exchange gifts. Mother admittedly told Aunt “they could keep their gift” because of the

animosity between them. Mother conceded that she had not reached out to Aunt in any

manner in over two years, but she claimed this was due to the pending termination case.

She later claimed that she may have reached out by text message the previous year but said

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she did not have any proof. Mother acknowledged that she and Avery had not had any

meaningful relationship since the termination case had been pending. Still, Mother

testified that she wanted to maintain a bond with Avery and “maintain that relationship

even if it is far . . . afar off.”

Aunt testified as well. She testified regarding how Avery came into her care in 2018

at the time of his injuries. She acknowledged that she was a single parent to Avery at that

time and received no financial benefit from the government to aid in his care. Aunt

admitted that the guardian ad litem initially gave her “a hard time” because she did not

have any medical training, and the guardian ad litem believed that Avery simply had too

many issues for her to handle as a single person. Aunt described various appointments

Avery had with different specialists, ranging from cardiology to neurology to eye doctors.

She acknowledged that she had missed “a lot” of work taking Avery to appointments over

the years.

Aunt testified that Avery had recently started receiving therapy at his school. He

was still considered nonverbal and could say a few words but could not make a complete

sentence. He was receiving speech therapy. When asked how much time she had spent

learning how to care for Avery, Aunt testified, “[I]t’s not a limit because we’re still

learning.” She testified that she had been working regularly with doctors, nurses, and

therapists at various facilities so that she would know what to do to work with him. Aunt

testified that it is somewhat difficult for Avery to bond with others due to his disabilities.

He participated in youth activities at their church to the best of his abilities. Aunt believed

that if Avery could no longer be in their home, Avery would be impacted pretty badly,

emotionally and physically, because he is accustomed to her and her husband and their

routine there.

Aunt testified that Avery does not know Mother. She also conceded that her current

relationship with Mother was not good. For instance, she testified that she would send

pictures of Avery to Mother in the past and post pictures of him on Facebook for her to

see, but Mother would send her a mean message criticizing her. Aunt testified that she did

not know how to please Mother and that Mother had shown anger toward her through text

messages and posting a video on Facebook. She was aware that Mother had recently gone

to jail for “some kind of violence.”

Aunt testified that she and her husband can financially support Avery without any

future support from Mother. She testified that they desired to adopt him and give him

permanency. Aunt said that she wanted the assurance of knowing that Avery was her child,

she could make all decisions for his future, and he could take her last name. They were

prepared to support and care for him beyond the age of eighteen due to his conditions. She

testified that they love him and that he is very happy. Sadly, however, Avery was not yet

able to “call [Aunt] anything” or refer to her by using any words.

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At the conclusion of Aunt’s testimony, the trial judge issued her oral ruling. She

described this case as “one of the saddest I’ve ever seen.” The trial court found that all

three grounds for termination were proven by clear and convincing evidence and that

termination of parental rights was in Avery’s best interest. It subsequently entered a 33-

page order detailing its findings of fact and conclusions of law. Mother timely filed a

notice of appeal.

II. ISSUES PRESENTED

The issue presented for review by Mother is whether the trial court erred in finding

that the guardian ad litem “met the burden of proving the termination of parental rights by

clear and convincing evidence.” The only argument she raises is regarding the best interest

analysis. Regardless of whether the parties have raised the issue, however, we must also

review the trial court’s decision as to the grounds for termination. See In re Carrington H.,

483 S.W.3d 507, 511 (Tenn. 2016) (holding that “appellate courts must review a trial

court’s findings regarding all grounds for termination and whether termination is in a

child’s best interests, even if a parent fails to challenge these findings on appeal”).

For the following reasons, we reverse one ground for termination but otherwise

affirm the juvenile court’s termination of Mother’s parental rights2 and remand for further

proceedings.

III. STANDARDS APPLICABLE TO TERMINATION PROCEEDINGS

“In Tennessee, proceedings to terminate parental rights are governed by statute.” In

re Markus E., 671 S.W.3d 437, 456 (Tenn. 2023) (citing In re Kaliyah S., 455 S.W.3d 533,

546 (Tenn. 2015)). Tennessee Code Annotated section 36-1-113 “sets forth the grounds

2

We note that in the guardian ad litem’s brief on appeal, she raised a separate issue regarding

whether this appeal must be dismissed “for failure to comply with T.C.A. 36-1-124(d).” Relying on a

decision of this Court from 2017, she argued that the notice of appeal “was not personally signed by the

Appellant as required under 36-1-124(d),” and therefore, this Court lacked subject matter jurisdiction over

the appeal. The guardian ad litem also filed a separate motion to dismiss the appeal on the same basis,

which we denied by order. The guardian ad litem asserted that “pursuant to T.C.A. § 36-1-124(d): ‘Any

notice of appeal filed in a termination of parental rights action shall be signed by the appellant.’” She

argued that Mother’s notice of appeal was filed on her behalf by her attorney but lacked Mother’s signature.

In In re Bentley D., 537 S.W.3d 907, 915 (Tenn. 2017), the Tennessee Supreme Court held that “the

signature requirement of Tennessee Code Annotated section 36-1-124(d) does not require a notice of appeal

to be signed personally by the appellant,” as the signature requirement is “satisfied when an attorney, with

specific authorization from his or her client, signs the notice of appeal.” The statutory language relied on

by the guardian ad litem in this appeal was subsequently removed from section 124. See 2018 Pub. Acts,

c. 875, § 35, eff. July 1, 2018 (“Tennessee Code Annotated, Section 36-1-124(d), is amended by deleting

the subsection in its entirety.”). A new subsection (d) was added to the statute effective July 1, 2024, but

the guardian ad litem did not construct any argument regarding it. See 2024 Pub.Acts, c. 996, § 22, eff.

July 1, 2024.

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and procedures for terminating the parental rights of a biological parent.” In re Kaliyah S.,

455 S.W.3d at 546. Pursuant to the statute, the petitioner seeking termination of parental

rights must prove two elements. Id. at 552. First, that party must prove the existence of at

least one of the statutory grounds for termination set forth in Tennessee Code Annotated

section 36-1-113(g). Id. The grounds are “cumulative and nonexclusive, so that listing

conditions, acts or omissions in one ground does not prevent them from coming within

another ground.” Tenn. Code Ann. § 36-1-113(g). Second, the petitioner must prove that

termination of parental rights is in the best interest of the child, considering the best interest

factors listed in Tennessee Code Annotated section 36-1-113(i). In re Kaliyah S., 455

S.W.3d at 552.

Because of the constitutional dimension of the parent’s rights at stake, the party

seeking termination “must prove all the elements of their case by clear and convincing

evidence.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). To be clear and

convincing, the evidence must enable the finder of fact “to form a firm belief or conviction

regarding the truth of the facts” sought to be established and eliminate “any serious or

substantial doubt about the correctness” of the findings. Id. Due to this heightened burden

of proof applicable in parental termination cases, we adapt our customary standard of

review on appeal. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). Appellate

courts review the trial court’s factual findings de novo in accordance with Tennessee Rule

of Appellate Procedure 13(d), presuming each factual finding to be correct unless the

evidence preponderates otherwise. In re Carrington H., 483 S.W.3d at 524. Then, we

make our own determination regarding “whether the facts, either as found by the trial court

or as supported by a preponderance of the evidence, amount to clear and convincing

evidence of the elements necessary to terminate parental rights.” Id. (citing In re Bernard

T., 319 S.W.3d at 596-97). “The trial court’s ruling that the evidence sufficiently supports

termination of parental rights is a conclusion of law, which appellate courts review de novo

with no presumption of correctness.” Id. (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn.

2009)).

IV. DISCUSSION

A. Grounds for Termination

1. Persistent Conditions

When the petition to terminate parental rights was filed in 2020,3 the termination

statute provided that this ground for termination existed when:

(3)(A) The child has been removed from the home or the physical or legal

3

Throughout this opinion, we apply the version of the statute in effect when the petition was filed.

See In re Braxton M., 531 S.W.3d 708, 732 (Tenn. Ct. App. 2017).

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custody of a parent or guardian for a period of six (6) months by a court order

entered at any stage of proceedings in which a petition has been filed in the

juvenile court alleging that a child is a dependent and neglected child, and:

(i) The conditions that led to the child’s removal still persist, preventing the

child’s safe return to the care of the parent or guardian, or other conditions

exist that, in all reasonable probability, would cause the child to be subjected

to further abuse or neglect, preventing the child’s safe return to the care of

the parent or guardian;

(ii) There is little likelihood that these conditions will be remedied at an early

date so that the child can be safely returned to the parent or guardian in the

near future; and

(iii) The continuation of the parent or guardian and child relationship greatly

diminishes the child’s chances of early integration into a safe, stable, and

permanent home;

(B) The six (6) months must accrue on or before the first date the termination

of parental rights petition is set to be heard[.]

Tenn. Code Ann. § 36-1-113(g)(3).

The threshold element for this ground to apply is met because Avery was removed

from the home and the physical and legal custody of Mother “for a period of six (6) months

by a court order entered at any stage of proceedings in which a petition has been filed in

the juvenile court alleging that a child is a dependent and neglected child.” See Tenn. Code

Ann. § 36-1-113(g)(3)(A). Avery was removed in 2018 by the protective custody order

that found probable cause to believe he was dependent and neglected.

Regarding subsection (i), the trial court found that the conditions that led to removal

included Avery’s severe abuse and serious injuries. It found that those conditions still

existed at the time of trial because Mother was unfit to care for Avery’s serious physical,

mental, and emotional needs. The trial court found that Mother had attended only two of

Avery’s “many medical appointments” and did not get the training offered to her regarding

how to care for his special needs. The trial court also found that Mother did not have stable

housing, failed to provide consistent support either financially or in kind, and failed to

engage in consistent visitation with Avery. It also found that Mother had spent time in jail

for domestic violence and had an order of protection against her regarding Father and her

other children. Thus, like the trial court, we find clear and convincing evidence that “[t]he

conditions that led to the child’s removal still persist, preventing the child’s safe return to

the care of the parent,” as well as “other conditions . . . that, in all reasonable probability,

would cause the child to be subjected to further abuse or neglect.” See Tenn. Code Ann. §

36-1-113(g)(3)(A)(i).

The trial court noted Mother’s testimony that she planned to make changes in the

future but found that “it is too late.” It found that she “had every opportunity to participate

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in [Avery’s] life and she did not choose to do so.” The court found that Mother failed to

take responsibility for her actions and always claimed that “everything was someone else’s

fault.” We agree and find by clear and convincing evidence that there is little likelihood

that the aforementioned conditions “will be remedied at an early date so that the child can

be safely returned to the parent [] in the near future.” See Tenn. Code Ann. § 36-1-

113(g)(3)(A)(ii). Finally, we conclude that “[t]he continuation of the parent [] and child

relationship greatly diminishes the child’s chances of early integration into a safe, stable,

and permanent home.” See Tenn. Code Ann. § 36-1-113(g)(3)(A)(iii). As the trial court

noted, Avery is in a safe and permanent home with Aunt and “has been waiting 6 years for

permanency” while Mother attempted to get her life together. The trial court predicted that

Mother would still be making the same promises ten years from now, “but the child does

not have the time to wait.” We affirm the trial court’s finding that this ground was proven

by clear and convincing evidence.

2. Severe Abuse

When the termination petition was filed in 2020, the statute provided that this

ground for termination existed if:

The parent or guardian has been found to have committed severe child abuse,

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

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

adoption to have committed severe child abuse against any child[.]

Tenn. Code Ann. § 36-1-113(g)(4). Notably, this ground for termination provides two

different “avenues for a finding of severe child abuse.” In re Anna B., No. M2016-00694-

COA-R3-PT, 2017 WL 436510, at *4 (Tenn. Ct. App. Feb. 1, 2017). The severe abuse

finding may have already been made in a “prior order of a court,” or, in the alternative, the

finding may be made “by the court hearing the petition to terminate parental rights or the

petition for adoption.” See Tenn. Code Ann. § 36-1-113(g)(4); In re Anna B., 2017 WL

436510, at *4. Thus, “‘[a]s the statute makes clear, the finding of severe abuse can be

based on a prior court order or on evidence of ‘severe child abuse’ submitted to the court

hearing the termination case.’” In re Brianna T., No. E2017-01130-COA-R3-PT, 2017

WL 6550852, at *4 (Tenn. Ct. App. Dec. 22, 2017).

Here, the trial court’s order purports to utilize both “avenues” described above. It

states:

The parents has [sic] been found to have committed severe child abuse, as

defined in § 37-1-102, under prior order of this court and no appeal was filed.

Severe abuse is confirmed by this court while hearing the petition to

terminate parental rights. As described in the findings hereinabove, the

parents have committed severe child abuse against the minor child.

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We begin by examining the prior order of the juvenile court regarding severe abuse. “A

finding of severe abuse in dependency and neglect proceedings has serious ramifications .

. . since a finding of severe abuse can serve as a ground for termination of parental rights.”

In re Kaliyah S., 455 S.W.3d at 537 n.5 (citing In re Samaria S., 347 S.W.3d 188, 201

(Tenn. Ct. App. 2011)). In a termination of parental rights proceeding, the doctrine of res

judicata prevents a parent from re-litigating whether he or she committed severe child

abuse when such a finding has been made in a previous dependency and neglect action.

See In re I.E.A., 511 S.W.3d 507, 517 (Tenn. Ct. App. 2016) (citing In re Dakota C.R., 404

S.W.3d 484, 497 (Tenn. Ct. App. 2012)). Here, however, the order entered in the

dependency and neglect proceeding stated, “The Court finds that the child is a victim of

severe abuse but does not find the child was a victim of severe abuse perpetrated by the

parents as the perpetrator cannot be identified.” This ground for termination is established

if “[t]he parent [] has been found to have committed severe child abuse, as defined in § 37-

1-102, under any prior order of a court . . . .” Tenn. Code Ann. § 36-1-113(g)(4). The

dependency and neglect order in this case simply did not find that Mother committed severe

child abuse.

We now turn to the alternative avenue for establishing this ground – where the

parent “is found by the court hearing the petition to terminate parental rights or the petition

for adoption to have committed severe child abuse against any child[.]” See id. The trial

court’s order stated, “Severe abuse is confirmed by this court while hearing the petition to

terminate parental rights. As described in the findings hereinabove, the parents have

committed severe child abuse against the minor child.” Scattered throughout the 33-page

order, the trial court made various findings regarding Avery’s abuse. The trial court found

that when Avery was discharged from the NICU, his medical records did not reflect any

injuries upon release. The court found that Avery was healthy when he left the hospital.

It found that Avery was readmitted to the hospital just two weeks later with all of the

injuries described at length above. The court found that LeBonheur was of the opinion that

Avery’s exam findings were “suspicious for more than one episode of nonaccidental

trauma, specifically abusive head trauma.” It found that medical reports “showed that the

injuries were in varying stages of healing.” The court found that Mother gave “conflicting

testimony” at trial regarding whether she was the one who took Avery to the hospital or

stayed home to pray while Father took him. The trial court noted that Mother eventually

admitted that she stayed home but “could not give a reason why she was not at the hospital

with the father and child,” as she could have simply asked her preacher to go to the hospital

to pray with her there. The trial court found that Avery “suffered severe abuse while under

[Mother’s] care.” It found that he “was born normal and [due] to no fault of his own,

someone horribly abused him.” The court found that “had [Mother] properly cared for him

upon his release from the hospital, he would not have been minutes from death when he

was rushed to the hospital.” It found that “[t]he child was severely abused after being sent

home from the hospital after birth, [and Mother] fails to acknowledge her role in this.” The

trial court found that Mother “is in denial about the severe abuse.” Notably absent from

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these findings, however, is any finding that Mother either knowingly exposed Avery to

abuse, knowingly failed to protect him from abuse, or knowingly used force on him.

Pertinent to this appeal, the following definition of severe child abuse was in effect

at the time when the termination petition was filed in 2020:

(27) “Severe child abuse” means:

(A)(i) The knowing exposure of a child to or the knowing failure to protect a

child from abuse or neglect that is likely to cause serious bodily injury or

death and the knowing use of force on a child that is likely to cause serious

bodily injury or death[.]

Tenn. Code Ann. § 37-1-102(b)(27) (emphasis added). The Tennessee Supreme Court

recently provided a helpful discussion of the “knowing” requirement and different forms

of severe child abuse in this version of the statute, in the context of a case with facts quite

similar to those before us in In re Markus E., 671 S.W.3d 437, 460-72 (Tenn. 2023). There,

the infant at issue was born premature at only three pounds, was discharged from the NICU

to his parents, and was later found to have suffered over twenty rib fractures. Id. at 444.

We quote from the Court’s discussion at length:

A. “Knowing” Conduct

The state of mind associated with severe child abuse as defined in

section 37-1-102(b)(22)(A)(i) is “knowing.” Tenn. Code Ann. § 37-1-

102(b)(22)(A)(i) (Supp. 2016). The statutes do not define “knowing.” . . . .

Viewing the severe child abuse provision in context, we note that

other grounds for termination of parental rights have historically required a

showing of a different state of mind, for example, that the parent’s act or

failure to act was “willful.” See, e.g., Tenn. Code Ann. § 36-1-102(1)(A)(i)

(Supp. 2016) (requiring a showing that the parent “willfully” failed to visit

or “willfully” failed to support the child). The Court interpreted willfulness

to require a showing that the parent had the ability to visit or support, and

implied a certain amount of intentionality. See, e.g., In re Adoption of

A.M.H., 215 S.W.3d [793, 810 (Tenn. 2007)] (holding that the evidence on

the parents’ failure to visit did not “support a finding that the parents

intentionally abandoned” the child); see also Willful, Black’s Law Dictionary

(11th ed. 2019) (“Voluntary and intentional, but not necessarily malicious”).

In contrast, the term “knowing” does not require proof the parent intended

for the child to suffer abuse or neglect, but instead focuses on the parent’s

awareness of relevant facts. See, e.g., Knowing, Black’s Law Dictionary

(11th ed. 2019) (“Having or showing awareness or understanding; well-

informed”).

If the term “knowing” indicates awareness, the question is, awareness

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of what? Our answer to that question must be consonant with the words that

surround “knowing” in the statute. . . .

Here, the statute uses “knowing” as part of the phrase “knowing

failure to protect a child from abuse or neglect.” Tenn. Code Ann. § 37-1-

102(b)(22)(A)(i) (Supp. 2016). While it surely includes actual awareness of

abuse or neglect that has occurred, the phrase “knowing failure to protect a

child from abuse or neglect” is not limited to that. The term “protect” means

to “defend or guard against injury or danger” and to “keep safe.” Protect,

Shorter Oxford English Dictionary (6th ed. 2007) (Oxford University Press)

(emphasis added). Thus, “protect” includes not only defending but also

guarding against danger, i.e., risk of future injury. The phrase “failure to

protect” is forward-looking; in family law, it means the “refusal or inability

of a parent or guardian to prevent abuse of a child under his or her care.”

Failure (failure to protect), Black’s Law Dictionary (11th ed. 2019)

(emphasis added). Thus, the term “knowing” as used in “knowing failure to

protect a child from abuse or neglect” must include not only awareness of

abuse or neglect that has occurred, but also awareness of facts,

circumstances, or information indicating that the child is at risk or in danger

of suffering abuse or neglect.

In the context of parental termination cases, our Court of Appeals has

discussed how the term “knowing” should be interpreted:

....

We consider a person’s conduct to be “knowing,” and a person

to act or fail to act “knowingly,” when he or she has actual

knowledge of the relevant facts and circumstances or when he

or she is either in deliberate ignorance of or in reckless

disregard of the information that has been presented to him or

her.

In re S.J., 387 S.W.3d [576, 592 (Tenn. Ct. App. 2012)] (quoting In re

Samaria S., 347 S.W.3d at 206) (emphasis and internal citations omitted).

“Persons act ‘knowingly’ when they have specific reason to know the

relevant facts and circumstances but deliberately ignore them.” In re R.C.P.,

No. M2003-01143-COA-R3-PT, 2004 WL 1567122, at *7 (Tenn. Ct. App.

July 13, 2004); see also In re H.L.F., 297 S.W.3d 223, 237 (Tenn. Ct. App.

2009) (“By deliberately and recklessly ignoring Father’s pedophilic interests,

Mother knowingly failed to protect Heather from being raped by Father....”).

This interpretation of “knowing” traces back to In re R.C.P., 2004 WL

1567122 at *7, in which then-Judge Koch adopted a definition articulated by

the West Virginia Supreme Court in West Va. Dep’t. of Health & Hum. Res.

ex rel. Wright v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996). The West

Virginia court explained that the statutory term “knowingly” as used in the

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West Virginia definition of child abuse “does not require that a parent

actually be present at the time the abuse occurs, but rather that the parent was

presented with sufficient facts from which he/she could have and should have

recognized that abuse occurred.” Id. at 878-79. Thus, the evidence is

generally required to show the parent was presented with facts,

circumstances, or information that would alert a reasonable parent to take

affirmative action to protect the child. See id. See also R.S. v. Dep’t of Child.,

831 So. 2d 1275, 1278 (Fla. Dist. Ct. App. 2002) (“In order for the father to

have failed to protect, there must have been evidence that he had the

capability to prevent the abuse. This by necessity requires proof that he knew

or should have known of the mother’s conduct and resulting injury to” the

child); In re P.N.T., 580 S.W.3d 331, 355 (Tex. App. 2019) (“A child is

endangered when the environment creates a potential for danger that the

parent is aware of but consciously disregards.”).

Applying Tennessee’s severe child abuse statute, our intermediate

appellate court has found “knowing” failure to protect even absent proof that

the parent was actually aware that abuse or neglect had occurred. Under this

standard, the requisite awareness is of facts, circumstances, or information

that would have triggered a reasonable parent’s duty to take affirmative

action to protect the child from abuse or neglect. If the parent has been

presented with such facts, circumstances, or information and recklessly

disregards them, the parent’s failure to protect can be considered knowing.

See, e.g., In re Samaria S., 347 S.W.3d at 206-07 (proof supported finding

that intellectually-challenged mother had enough ability to recognize the

importance of facts presented to her and appreciate the risk of abuse or

neglect to her children, and thus supported finding that her neglect was

knowing); In re Aleksandree M.M., No. M2010-01084-COA-R3-PT, 2010

WL 3749423, at *3 (Tenn. Ct. App. Sept. 27, 2010) (while there was no

evidence the mother saw the boyfriend’s sexual abuse of daughter, proof

showed mother ignored risk implicit in incidents such as her boyfriend’s

lewd comments about young girls in mother’s presence, and his request for

permission to “court” mother’s daughter); In re Estrella A., No. M2022-

00163-COA-R3-PT, 2022 WL 17091958, at *7 (Tenn. Ct. App. Nov. 21,

2022) (mother had been abused by her own father, knew his propensity

toward sexual abuse, was warned to prohibit contact between maternal

grandfather and her children, and yet still lived with children in sister’s home

with grandfather and exposed children to risk of abuse).

Similarly, a parent’s failure to protect can be considered knowing if

the parent was deliberately ignorant, as where the parent avoids actual

knowledge of the abuse or neglect but is aware of facts, circumstances, or

information that would put a reasonable parent on notice of the risk and the

need to protect the child. See, e.g., In re Tamera W., 515 S.W.3d 860, 875

(Tenn. Ct. App. 2016) (father would often leave the home when mother

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began beating children); In re S.J., 387 S.W.3d at 593 (mother ignored

admonition by healthcare provider that infant was underweight and needed

to be examined by a physician, did not take the child to be seen by a

physician, and continued to starve the child); In re Caleb J.B.W., No. E2009-

01996-COA-R3-PT, 2010 WL 2787848, at *6 (Tenn. Ct. App. July 14, 2010)

(when mother noticed child’s injuries after leaving him in care of her

boyfriend, she chose to believe her boyfriend’s explanation that child fell

while they were playing).

....

Accordingly, we agree with the Court of Appeals and hold that, in the

context of severe child abuse, a person’s conduct is considered “knowing,”

and a person is deemed to “knowingly” act or fail to act, when “he or she has

actual knowledge of the relevant facts and circumstances or when he or she

is either in deliberate ignorance of or in reckless disregard of the information

that has been presented to him or her.” In re S.J., 387 S.W.3d at 592 (citing

In re R.C.P., 2004 WL 1567122, at *7). Under this standard, the relevant

facts, circumstances, or information would alert a reasonable parent to take

affirmative action to protect the child. For deliberate ignorance, persons can

be found to have acted knowingly “when they have specific reason to know”

the relevant facts, circumstances, or information “but deliberately ignore

them.” In re R.C.P., 2004 WL 1567122, at *7. For reckless disregard, if the

parent has been presented with the relevant facts, circumstances, or

information and recklessly disregards them, the parent’s failure to protect can

be considered “knowing.”

B. Severe Child Abuse by Commission or Omission

“Severe abuse” encompasses two different forms of severe child

abuse, both equally culpable. One involves commission and the other

involves omission. The commission form is defined as “exposure of a child”

to “abuse or neglect that is likely to cause serious injury or death,” or the “use

of force on a child that is likely to cause serious bodily injury or death.” Tenn.

Code Ann. § 37-1-102(b)(22)(A)(i) (Supp. 2016). The omission form is

defined as “failure to protect a child” from such abuse, neglect, or use of

force. Id. Severe child abuse can be either or both.

Sometimes when a child suffers abuse while in the custody of both

parents, the evidence shows that one parent inflicted the abuse and the other

parent failed to protect the child from it. For example, in In re H.L.F., 297

S.W.3d at 236-37, the father subjected all of the children to various forms of

active abuse; he engaged in sexual abuse with some of the children while the

others witnessed it. In that case, there was no evidence that the mother

participated in the abuse or actually saw it. Id. Still, she was well aware of

the father’s prurient sexual interest in minors, and the father’s sexual abuse

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of his daughter was known by the three other children in the home as well as

other children who visited the home. Id. Under those circumstances, the

appellate court called it “inconceivable” that the mother would not

“recognize that abuse ... had occurred or that it was highly probable that

severe child abuse would occur.” Id. at 237. Thus, the appellate court

concluded that the mother had engaged in the “omission” form of severe

abuse by knowingly failing to protect her children from the father’s abuse.

Id.

Even so, when a child is in the custody of both parents, the structure

of the statute does not necessarily require the trial court to determine which

parent “expos[ed]” the child to “abuse or neglect that is likely to cause

serious bodily injury or death” or “use[d] force on a child that is likely to

cause serious bodily injury or death,” or whether both parents did. Tenn.

Code Ann. § 37-1-102(b)(22)(A)(i) (Supp. 2016). The definition of “severe

abuse” is in the disjunctive; a parent may be found to have committed severe

abuse if the proof shows the parent either knowingly inflicted the abuse or

knowingly failed to protect from the abuse. Id.

The reason for this statutory structure is apparent; abuse is often

perpetrated on children too young to say which parent inflicted it, and often

both parents deny any abuse occurred. Our Court of Appeals described this

common scenario:

This case presents a textbook example of the confluence of

circumstances that are presented with unfortunate regularity in

cases of alleged child abuse. A preverbal infant or child

sustains serious injuries, the only witnesses to the injuries are

the parents or caregivers who maintain that the injuries result

from an innocent misunderstanding or inexplicable mystery,

and testimony by medical personnel whose role is to opine as

to the most likely cause of the child’s injuries, not to identify

the perpetrator.

In re S.J., 387 S.W.3d at 591. Thus, it may not be possible to determine which

parent inflicted the abuse, or if both parents did. In such cases, both parents

may be found to have committed severe abuse if the proof shows that at least

one of them must have knowingly inflicted the abuse and the other must have

knowingly failed to protect from the abuse.

For example, in In re E.Z., [E2018-00930-COA-R3-JV, 2019 WL

1380110, at *16 (Tenn. Ct. App. Mar. 26, 2019)], while the child was in the

custody of both parents, he suffered “not one but a series of injuries,”

including three broken bones, a bruised penis, and a torn frenulum. The

undisputed medical evidence showed the injuries “were non-accidental in

origin.” Id. Both parents denied any abuse. The trial court found: “[B]oth

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parents know which of them harmed this child. The parent who harmed the

child knows that he or she caused the injuries. The other parent knows that

he or she did not, and that it must have been the other parent.” Id. Despite

this, the trial court declined to find either parent committed severe abuse. It

explained that even though the injuries occurred while in the parents’ care,

the trial court could not, “due to each parent’s claimed ignorance of how [the

child] received any of his injuries, find one or the other responsible.” Id. at

*17.

The intermediate appellate court rejected this reasoning:

Mother’s and Father’s denials, by themselves, are not

dispositive of anything. [The child’s] injuries fit within the

definition of serious bodily harm necessary to sustain a finding

of severe child abuse.... We need not identify which parent

physically applied the violent force necessary to inflict the

injuries on [the child] because, in view of the medical evidence,

other facts as found by the Trial Court, and the Trial Court’s

credibility determinations, there were sufficient facts presented

to Mother and Father from which, at a minimum, each could

have and should have recognized that severe child abuse had

occurred or that it was highly probable to occur and that the

other parent was the abuser.

Id. at *18. The intermediate appellate court held that the evidence clearly and

convincingly showed that “Father or Mother subjected [the child] to severe

child abuse with the other’s knowledge.” Id. at *19. Thus, while the statute

requires an individualized finding that each parent committed severe child

abuse, the trial court is not always required to figure out which parent did

what.

The catch in this situation is that the proof must show—as to both

parents—that even if they didn’t actually inflict the injuries to the child, they

must have knowingly failed to protect the child. In other words, the proof

must show both parents had “actual knowledge of” the relevant facts,

circumstances or information or were “either in deliberate ignorance of or in

reckless disregard of” relevant facts, circumstances, or “information that

ha[d] been presented to him or her.” In re S.J., 387 S.W.3d at 592 (quoting

In re Samaria S., 347 S.W.3d at 206). See, e.g., In re H.L.F., 297 S.W.3d at

237 (referring to facts showing that severe abuse had occurred “or that it was

highly probable that severe child abuse would occur.”). The petitioner needs

to show, as to both parents, that they were aware of facts, circumstances, or

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

protect the child. Thus, even if it cannot be determined which was the

“perpetrator” parent, both can be held responsible for having knowingly

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failed to protect the child.

That is the situation here. The trial court found there was no medical

cause for Markus’s rib fractures and they were non-accidental in nature. It

found that the rib fractures must have been inflicted by either Mother or

Father. These findings were affirmed by the Court of Appeals. However,

neither the trial court nor the Court of Appeals made an individualized

finding on which parent, or that both, actually inflicted the child’s injuries.

There is no evidence in the record that would permit such a determination.

It is clear that Mother and Father both failed to protect Markus from

injury. However, to affirm a finding of severe child abuse as to both parents,

the evidence in the record must show that the failure to protect was

“knowing” as to both. We focus, then, on the proof in the record as to both

parents: what did they know and when did they know it?

Father and Mother stress there is no direct evidence they knew of the

fractures to Markus’s ribs and failed to protect him, only circumstantial

evidence. That the evidence in this case is circumstantial is of no moment.

As our Court of Appeals has observed:

In child abuse cases, the parent or caregiver may deny that the

injury was purposefully inflicted, and where the injuries are

inflicted on preverbal infants and children, there is often no

witness to the injury other than the parent or caregiver. The

“knowing” element can and often must be gleaned from

circumstantial evidence, including but not limited to, medical

expert testimony on the likelihood that the injury occurred in

the manner described by the parent or caregiver.

In re S.J., 387 S.W.3d at 592. We have rejected any suggestion that

circumstantial evidence is inferior to or less probative than direct evidence.

See State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011) (citing 2A Charles

Alan Wright & Peter J. Henning, Federal Practice & Procedure § 411

(2009)); cf. 7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 42.03(a) (2022)

(“Do not assume that direct evidence is always better than circumstantial

evidence. According to our laws, direct evidence is not necessarily better

than circumstantial evidence. Either type of evidence can prove a fact if it is

convincing enough.”). Circumstantial or not, evidence is evidence, and we

consider it all.

Here, the trial court emphatically rejected the testimony from Mother

and Father about hearing a “crackling sound” near Markus’s ribs. The trial

court characterized the parents’ testimony as “a cover story,” an “attempted

cover up” in which both parents were “complicit.” On appeal, we defer to the

trial court’s credibility determination about the parents’ testimony on this

issue. Jones v. Garrett, 92 S.W.3d [835, 838 (Tenn. 2002)]. It can be

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reasonably inferred that the trial court found that the parents’ testimony about

the “crackling sound” was knowingly false and offered with intent to

deceive.

Still, the inference from this testimony can only take us so far. The

parents’ lack of credibility is relevant but not sufficient. It tells us that the

parents were untruthful about what they knew before the TriStar x-rays

revealed a rib fracture. But it does not tell us what the parents actually knew

or when they knew it. Cf. Dep’t of Child.’s Servs. v. H.A.C., No. M2008-

01741-COA-R3-JV, 2009 WL 837709, at *4 (Tenn. Ct. App. Mar. 26, 2009)

(“But, other than the dubious explanations she gave regarding the possible

causes of the child’s injuries, there is no evidence in the record to support a

finding that Mother knowing exposed her child to abuse ....”); In re N.B.-A,

657 Pa. 137, 224 A.3d 661, 672 (2020) (“[S]uspicions are not a substitute for

clear and convincing evidence.... [A]lthough we are troubled by Mother’s

initial false statements ... those statements in and of themselves are

insufficient to establish, under a clear and convincing evidence standard, that,

prior to the time she made those statements, Mother knew or should have

known of a danger posed to Child ....”) (internal quotation marks and citation

omitted). We look further, then, at the “relevant facts and circumstances”

known to Mother and Father. See In re R.C.P., 2004 WL 1567122 at *7.

The record shows that Markus had many physical challenges other

than the rib fractures. He was born premature and had several conditions

related to his premature birth, including an inguinal hernia, an inherited

overactive thyroid condition, and a related blood condition,

thrombocytopenia. Markus had skull abnormalities and subdural hematomas.

He had frequent breathing, congestion, and feeding issues. After Markus was

admitted to Vanderbilt, physicians there diagnosed him with a viral infection,

an abnormality of the cartilage around his larynx called laryngomalacia, and

enlarged adenoids that obstructed his airway.

Sometimes, evidence of multiple unexplained injuries to a child can

point to abuse by the custodial parents. See, e.g., In re S.J., 387 S.W.3d at

594 (agreeing with the trial court’s decision not to credit the mother’s

“assertion that her children’s numerous injuries were simply the result of ‘a

ridiculously bad stream of luck.’”); In re N.T.B., 205 S.W.3d at 507 (finding

knowing failure to protect where “[t]he Child’s injuries, which occurred

while the Child was very young, were multiple, very serious, inflicted on

separate occasions with great force, and not self-inflicted or accidentally

inflicted.”); In re E.Z., 2019 WL 1380110, at *17 (after child suffered three

broken bones, a bruised penis, and a torn frenulum, the appellate court

observed that “[t]he bottom line is Mother and Father could or would do

nothing to prevent these injuries that kept cropping up.”).

That is not the case here. The trial court did not find, nor does the

evidence indicate, that Markus’s other physical issues were non-accidental,

- 20 -

inflicted injuries. In saying that, we pause at Markus’s subdural hematomas.

Although the pediatric plastic surgeon who discovered the subdural

hematomas did not suspect abuse, child abuse specialist Dr. Brown did. She

testified that such hematomas can be “highly associated with abusive

trauma” and were “concerning for somebody hurting him and hurting his

brain.” However, after considering them closely, she said she could not

testify that Markus’s hematomas were caused by abuse. Thus, in this record,

no evidence shows that any of Markus’s physical conditions other than the

rib fractures can be attributed to abuse.

Against this backdrop, we consider what Mother and Father would

have observed about Markus’s rib fractures before the first was spotted on

the TriStar x-ray on January 10, 2015. Dr. Brown described in her testimony

how a child with rib fractures would appear to caregivers. “In the beginning

when a fracture is caused,” she said, “they’re going to be fussy and in pain.”

Because rib fractures are not necessarily accompanied by external bruising

or other identifiable body damage, the source of the pain, even from an acute

or recent injury, may not be obvious:

A. You’re not going to necessarily know what they’re fussy

from. So it—with rib fractures, it is fairly common for parents

who—or for people, caretakers who don’t know that they have

fractures to—that’s not going to be their natural assumption.

So there would have been a time when he was probably fussier

than usual but it may have been hard for a caretaker—they

wouldn’t jump to the conclusion that he had rib fractures, I

guess, is what I’m trying to say.

Q. Would you expect there to be any particular symptomology

when he was picked up or grabbed around his torso area, for

instance, if he had fractured ribs?

A. There can be, and—but some kids with rib fractures are, you

know, if they’re generally calmer babies anyway, you know,

you can determine, oh, gosh, I’m picking him up this way, this

is a little bit weird that he’s crying. But a lot of babies, you just

aren’t going to be able to tell the difference between fussiness

from another cause and fussiness from a rib fracture.

....

Dr. Brown’s testimony indicates that a caregiver of Markus who did not

inflict the injuries would have noticed, at most, fussiness, crying, and perhaps

some difficulty breathing.

One would expect reasonable parents to notice persistent fussiness,

crying, and breathing difficulties, and to seek medical attention. In this

record, Mother and Father did both. Even crediting the trial court’s finding

that Mother’s testimony was not credible, it is undisputed in the record that

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Mother took Markus to see several healthcare providers during the relevant

period, and that Father relied on Mother to do so.

In September 2014, Markus was seen by a pediatric plastic surgeon,

who took a scan of his skull to diagnose the cause of the child’s skull

abnormalities. In December 2014, Mother took Markus to see a nurse

practitioner and reported heavy, labored breathing, congestion, irritability,

and feeding issues. A week later, Mother brought Markus to a follow-up

appointment with his pediatric endocrinologist for his thyroid condition.

Early on Christmas Day 2014, Mother took Markus to the Vanderbilt

Hospital emergency room for coughing and congestion. Finally, on January

10, 2015, Mother took Markus to TriStar, reporting continued coughing.

TriStar x-rayed Markus’s chest only to determine if he had bronchitis.

Instead, it revealed a rib fracture.

All of these medical providers examined and treated Markus. Until

the TriStar x-ray, none recognized or suspected rib fractures or injury. None

of Markus’s medical records document visible signs of injury. In addition,

Grandmother and Daycare Provider both cared for Markus during the

relevant period. Both testified they never saw or heard anything to cause

them to suspect Markus was injured or in pain.

With benefit of hindsight, we can see that at least some of Markus’s

fussiness, congestion, breathing difficulties, and feeding issues were likely

caused by his rib fractures. Hindsight, however, is not the proper lens. We

look at what the non-perpetrating parent knew or must have known before

discovery of the abuse by authorities. In the specific circumstances in this

case, even Dr. Brown acknowledged that Markus’s other physical conditions,

such as laryngomalacia, could have obfuscated the signs of rib fracture

detailed in her expert testimony.

In cases where our appellate courts have upheld a finding of knowing

failure to protect from severe abuse, there was proof that the non-perpetrating

parent was presented at the time with facts, circumstances, or information

showing that the child had been, or was likely to be, subjected to abuse or

neglect. See, e.g., In re E.Z., 2019 WL 1380110, at *17 (“[B]ased on the

medical evidence presented at trial, we do not believe Mother could have

missed B.G.’s reaction to being hurt so badly.”); In re Samaria S., 347

S.W.3d at 207 (“The records and the undisputed testimony describe an infant

whose appearance was shocking, with no fat whatsoever under his skin, skin

hanging over his bones, and in respiratory distress.”); In re R.C.P., 2004 WL

1567122, at *8 (“[T]he record contains evidence that proves clearly and

convincingly that M.A.F. deliberately and recklessly disregarded the

information she had regarding B.J.’s prurient interest in sex that made it

likely that he would sexually abuse R.C.P.”).

Absent such proof, a finding of “knowing” failure to protect will not

stand. Courts in sister states with a comparable “knowing” state-of-mind

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requirement have held that the state-of-mind element was not proven where

an infant’s injuries were not perceptible and there was no history of harmful

conduct by the other parent. For example, in In re Adner G., 925 A.2d 951

(R.I. 2007), the Supreme Court of Rhode Island found clear error in a trial

court’s determination that the parents either abused their infant child or

knowingly let that abuse happen. The Rhode Island Court based its holding

in part on testimony indicating that the infant’s older injuries were neither

visible nor detectable, and in fact were not discovered by “any of the doctors

who examined the infant during the first seven weeks of her life.” Id. at 960.

In a Michigan case involving a child who died from blunt force trauma

to the head, the appellate court held that a mother’s parental rights as to her

surviving children could not be terminated for severe abuse or failure to

protect. In re Brown/White, No. 359038, 2022 WL 2188473, at *1 (Mich. Ct.

App. June 16, 2022). The child was in the care of both parents and the

evidence indicated the injury was inflicted by one of them. Id. at *3.

However, no external injuries were visible and, even though the child

suffered severe internal injuries, there was nothing in the record showing that

the non-abuser parent could have detected them. Id. at *4. Thus, even though

the evidence allowed for an inference that either the mother or father inflicted

the abuse, the finding of severe abuse as to the appellant mother was reversed

because there was “nothing to suggest that the non-abuser parent was aware

of the need to protect the child from the abuser.” Id.

In a Florida case, R.S. v. Dep’t of Child. & Fams., the evidence

showed that the mother inflicted severe abuse on the child, and the question

on appeal centered on the father’s failure to protect. 831 So.2d at 1278.

Florida’s intermediate appellate court reversed the trial court’s termination

of the father’s parental rights where competent medical evidence showed the

child’s injuries were “only identifiable after the doctors examined the CAT

scans and the MRI.” Id. The evidence showed the “only outward sign was

that [the infant] was irritable, which was easily attributable to recent

inoculations the baby had received. In short, there was no evidence that the

father witnessed the abuse or that he knew or should have known of the

child’s injuries as they were not visibly discernible.” Id. The appellate court’s

assessment was blunt: “The evidence in this case as regards to the father is

neither substantial nor competent. It simply doesn’t exist.” Id. at 1279.

This case is similar. 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.

We must conclude that the evidence in the record does not clearly and

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convincingly show that the failure of Mother and Father to protect Markus

from the non-accidental rib fractures was “knowing.” Tenn. Code Ann. § 37-

1-102(b)(22)(A)(i) (Supp. 2016) (definition of severe child abuse). We

reverse the holding of the trial court and the Court of Appeals as to this

ground for termination of parental rights as to both Mother and Father.

Id. at 460-72 (footnotes omitted).

We reach the same conclusion in this case. The trial court made no finding on which

parent inflicted the abuse, or if both did. It found that Avery “suffered severe abuse while

under [Mother’s] care” and that “someone horribly abused him.” In her oral ruling, the

trial judge similarly stated that “somebody abused him horribly. And it’s either you, dad,

but if not, you were in control of the situation, and you are guilty of severe child abuse.

And somebody -- and it -- it looks to me like it’s going to be the individuals that take care

of him that he only knows.” Later, she stated, “Somebody did it, and you’re responsible

because you were the legal parent who was supposed to be taking care of him along with

[Father].” The trial court’s finding regarding this ground for termination stated, “As

described in the findings hereinabove, the parents have committed severe child abuse

against the minor child.” (emphasis added). We recognize that, as explained in Markus E.,

“when a child is in the custody of both parents, the structure of the statute does not

necessarily require the trial court to determine which parent ‘expos[ed]’ the child to ‘abuse

or neglect that is likely to cause serious bodily injury or death’ or ‘use[d] force on a child

that is likely to cause serious bodily injury or death,’ or whether both parents did.” 671

S.W.3d at 466 (quoting Tenn. Code Ann. § 37-1-102(b)(22)(A)(i) (Supp. 2016)). “The

definition of ‘severe abuse” is in the disjunctive; a parent may be found to have committed

severe abuse if the proof shows the parent either knowingly inflicted the abuse or

knowingly failed to protect from the abuse.” Id. This means that “both parents may be

found to have committed severe abuse if the proof shows that at least one of them must

have knowingly inflicted the abuse and the other must have knowingly failed to protect

from the abuse.” Id. Again, however, “[t]he catch in this situation is that the proof must

show—as to both parents—that even if they didn’t actually inflict the injuries to the child,

they must have knowingly failed to protect the child.” Id. at 467. In other words, the proof

must show the parent “had ‘actual knowledge of’ the relevant facts, circumstances or

information or [was] ‘either in deliberate ignorance of or in reckless disregard of’ relevant

facts, circumstances, or ‘information that ha[d] been presented to him or her.’” Id. (quoting

In re S.J., 387 S.W.3d at 592). The petitioner must show that the parent was “aware of

facts, circumstances, or information that would alert a reasonable parent to take affirmative

action to protect the child.” Id. We focus on “what did [the parent] know and when did

they know it?” Id. So, we consider the “relevant facts and circumstances” known to

Mother. See id. at 468.

“We look at what the non-perpetrating parent knew or must have known before

discovery of the abuse by authorities.” Id. at 470. Here, Avery was only out of the hospital

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and in the care of Mother and Father for two weeks. Mother testified that she never knew

about the internal injuries Avery was suffering until the day he went to LeBonheur.

Doctors determined that Avery’s radius fracture appeared to be “a week or so old,” while

the femur and tibia fractures appeared to be new. His subdural hemorrhages were also

found to be “multiple and in various stages of resolution.” Although doctors suspected

“more than one episode of nonaccidental trauma,” Mother testified that Avery was acting

fine until the night he was taken to the hospital. She also testified that she had taken Avery

to three doctor appointments earlier that same week, before he was admitted to the hospital

on Thursday, including a well-child visit, an appointment regarding his heart, and another

visit due to him spitting up, and “he was perfectly fine.” Mother also testified that she did

not observe anything external such as bulging. There is nothing in the record to show that

Mother should have discovered the injuries earlier or suspected that Avery was abused by

Father or anyone else. She testified that the police conducted a lengthy investigation and

interviewed her and Father but could never determine who committed the abuse. “In cases

where our appellate courts have upheld a finding of knowing failure to protect from severe

abuse, there was proof that the non-perpetrating parent was presented at the time with facts,

circumstances, or information showing that the child had been, or was likely to be,

subjected to abuse or neglect. . . . Absent such proof, a finding of ‘knowing’ failure to

protect will not stand.” Id. at 470-71. The evidence in the record does not clearly and

convincingly show either Mother’s knowing exposure of the child to abuse, her knowing

failure to protect the child from abuse, or knowing use of force on the child. We reverse

this ground for termination.

3. Failure to Manifest an Ability and Willingness to Assume Custody

Tennessee Code Annotated section 36-1-113(g)(14) provides another ground for

termination when:

A parent [] has failed to manifest, by act or omission, an ability and

willingness to personally assume legal and physical custody or financial

responsibility of the child, and placing the child in the person’s legal and

physical custody would pose a risk of substantial harm to the physical or

psychological welfare of the child[.]

For this ground, two prongs must be proven by clear and convincing evidence: “(1) the

parent [] failed to manifest an ability and willingness to personally assume legal and

physical custody or financial responsibility of the child; and (2) placing the child in the

parent’s legal and physical custody would pose a risk of substantial harm to the physical

or psychological welfare of the child.” In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020).

Regarding the first prong, the statute “places a conjunctive obligation on a parent []

to manifest both an ability and willingness to personally assume legal and physical custody

or financial responsibility for the child.” Id. at 677. So, “[i]f a person seeking to terminate

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parental rights proves by clear and convincing proof that a parent [] has failed to manifest

either ability or willingness, then the first prong of the statute is satisfied.” Id. When

considering whether the parent has demonstrated an ability, “we focus on ‘the parent’s

lifestyle and circumstances.’” In re Jaxx M., No. E2018-01041-COA-R3-PT, 2019 WL

1753054, at *9 (Tenn. Ct. App. Apr. 17, 2019) (quoting In re Cynthia P., No. E2018-

01937-COA-R3-PT, 2019 WL 1313237, at *8 (Tenn. Ct. App. Mar. 22, 2019)). For

willingness, “we look for more than mere words” and consider whether the parent

attempted to overcome the obstacles that have prevented him or her from assuming custody

or financial responsibility for the child. Id. “The analysis of a parent’s failure to manifest

an ability and willingness to assume custody or financial responsibility focuses on the

parent’s actions throughout the life of the [c]hild.” In re Isabella G., No. M2022-00246-

COA-R3-PT, 2023 WL 1131230, at *12 (Tenn. Ct. App. Jan. 31, 2023) (citing In re Neveah

M., 614 S.W.3d at 677).

The trial court found that Mother failed to manifest an ability and willingness to

personally assume custody or financial responsibility. It found that Mother had not

attempted to obtain custody and demonstrated by her actions and inactions that “she does

not desire custody.” The trial court found that Mother was granted visitation rights and the

right to participate in Avery’s medical appointments, yet she failed to engage in more than

token visitation. The trial court found that Mother is not capable of parenting the child let

alone assuming legal and physical custody. It also found that she failed to assume financial

responsibility for the child. The trial court found that Avery has many physical needs and

that Mother could not provide for him because she is being evicted and will have no home.

We likewise conclude by clear and convincing evidence that Mother has failed to

demonstrate an ability or a willingness to personally assume custody or financial

responsibility for Avery.

The second prong of this ground for termination requires a showing, by clear and

convincing evidence, that “placing the child in the person’s legal and physical custody

would pose a risk of substantial harm to the physical or psychological welfare of the

child[.]” Tenn. Code Ann. § 36-1-113(g)(14). Regarding this prong:

The courts have not undertaken to define the circumstances that pose a risk

of substantial harm to a child. These circumstances are not amenable to

precise definition because of the variability of human conduct. However, the

use of the modifier “substantial” indicates two things. First, it connotes a real

hazard or danger that is not minor, trivial, or insignificant. Second, it

indicates that the harm must be more than a theoretical possibility. While the

harm need not be inevitable, it must be sufficiently probable to prompt a

reasonable person to believe that the harm will occur more likely than not.

In re Malachi M., No. E2020-01114-COA-R3-PT, 2021 WL 1140272, at *6 (Tenn. Ct.

App. Mar. 25, 2021) (quoting In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL

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1629930, at *8 (Tenn. Ct. App. Apr. 4, 2018)).

The trial court found that placing Avery in Mother’s legal and physical custody

would pose a risk of substantial harm to his physical or psychological welfare. It found

that Avery is a special needs child who is currently in a safe home with individuals who

properly care for his mental, physical, educational, religious, and emotional needs. The

court found that Avery has thrived in Aunt’s care and is loved and supported by a large

extended family and community. It found that Mother could not provide for Avery, and

any attempt to move him to a parent he does not even know would pose a significant risk

of substantial harm. We agree that this prong was also proven by clear and convincing

evidence. Therefore, we affirm the trial court’s finding that this ground for termination

was sufficiently proven.

B. Best Interest

If at least one ground for termination has been proven by sufficient evidence, “the

court next determines whether the proof amounts to clear and convincing evidence that

terminating parental rights is [in] the best interests of the child.” In re Gabriella D., 531

S.W.3d 662, 681 (Tenn. 2017) (citing In re Carrington H., 483 S.W.3d at 523). When the

termination petition was filed in 2020, Tennessee Code Annotated section 36-1-113(i)

provided nine statutory factors to be considered in determining whether termination was in

the best interest of the child, which we will set forth in detail below. In addition, our

supreme court has explained:

When considering these statutory factors, courts must remember that “[t]he

child’s best interests [are] viewed from the child’s, rather than the parent’s,

perspective.” In re Audrey S., 182 S.W.3d at 878. Indeed, “[a] focus on the

perspective of the child is the common theme” evident in all of the statutory

factors. Id. “[W]hen the best interests of the child and those of the adults

are in conflict, such conflict shall always be resolved to favor the rights and

the best interests of the child. . . .” Tenn. Code Ann. § 36-1-101(d) (2017).

Ascertaining a child’s best interests involves more than a “rote

examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.

And the best interests analysis consists of more than tallying the number of

statutory factors weighing in favor of or against termination. White v.

Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts

and circumstances of each unique case dictate how weighty and relevant each

statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d

at 878. Simply put, the best interests analysis is and must remain a factually

intensive undertaking, so as to ensure that every parent receives

individualized consideration before fundamental parental rights are

terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon the

circumstances of a particular child and a particular parent, the consideration

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of one factor may very well dictate the outcome of the analysis.” In re

Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).

But this does not mean that a court is relieved of the obligation of considering

all the factors and all the proof. Even if the circumstances of a particular case

ultimately result in the court ascribing more weight—even outcome

determinative weight—to a particular statutory factor, the court must

consider all of the statutory factors, as well as any other relevant proof any

party offers.

In re Gabriella D., 531 S.W.3d at 681-82.

The first statutory factor is “[w]hether the parent or guardian has made such an

adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best

interest to be in the home of the parent or guardian.” Tenn. Code Ann. § 36-1-113(i)(1).

The trial court found that Mother has not made such an adjustment. It found that Mother

failed to acknowledge her role in the severe abuse Avery suffered after being sent home

from the hospital with her and failed to obtain training regarding how to care for his severe

needs. As for her circumstances, the trial court found that Mother had issues with

incarceration, an order of protection against her, divorce, eviction, living in an unsafe

neighborhood, and unstable employment. The record fully supports these findings.

The second factor is “[w]hether the parent [] has failed to effect a lasting adjustment

after reasonable efforts by available social services agencies for such duration of time that

lasting adjustment does not reasonably appear possible.” Tenn. Code Ann. § 36-1-

113(i)(2). The trial court found that, rather than adjusting, Mother remained in denial about

the severe abuse, had issues with domestic violence, was no longer the primary residential

parent for her other children, and failed to take advantage of the services and opportunities

that were offered to her by social services, the hospital, and Aunt. The record supports

these findings as well.

The third factor considers whether the parent “has maintained regular visitation or

other contact with the child.” Tenn. Code Ann. § 36-1-113(i)(3). The trial court found that

Mother “basically abandoned” the child. It found there was no bonding between them. It

also found that Mother made no effort to do what it took to increase her visits. We agree.

Next, we consider “[w]hether a meaningful relationship has otherwise been

established between the parent or guardian and the child.” Tenn. Code Ann. § 36-1-

113(i)(4). The trial court found that “[Avery] does not even know [Mother],” and they

have no meaningful relationship. It found that she does not know how to interact with him

or meet his mental, physical, emotional, and social needs. The trial court found that Mother

had very little working knowledge of Avery’s intelligence and articulation. The record

supports these findings.

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The fifth factor considers “[t]he effect a change of caretakers and physical

environment is likely to have on the child’s emotional, psychological and medical

condition.” Tenn. Code Ann. § 36-1-113(i)(5). The trial court found that Avery has

bonded with Aunt and her extended family and that he has developed bonds with teachers,

providers, friends, and church members in his current placement. The trial court found that

he would “lose[] everyone he has gained” if he did not remain with his current custodian.

The trial court found that Avery needed a safe permanent home and a routine, and his

current custodians have a lifetime commitment to him. It found that a change in caretakers

would be “emotionally and psychologically devastating” for Avery, and “the child who has

taken twenty steps forward would be 20 steps behind.” We agree.

The next factor considers whether the parent “has shown brutality, physical, sexual,

emotional or psychological abuse, or neglect toward the child, or another child or adult in

the family or household.” Tenn. Code Ann. § 36-1-113(i)(6). Regarding this factor, the

trial court noted that Avery was adjudicated severely abused in addition to the fact that

Mother had issues regarding domestic violence with Father. The record supports these

findings.

Next, we consider “[w]hether the physical environment of the parent’s [] home is

healthy and safe, whether there is criminal activity in the home, or whether there is such

use of alcohol, controlled substances or controlled substance analogues as may render the

parent [] consistently unable to care for the child in a safe and stable manner.” Tenn. Code

Ann. § 36-1-113(i)(7). Regarding housing, the trial court found that Mother’s “housing

future is unknown.” It found that she does not work consistently and depends on

government benefits. It also found that there was domestic violence and criminal activity

in the home, as Mother had been incarcerated on a domestic violence charge, and there was

an order of protection against her. We agree.

The eighth factor is whether the parent’s “mental and/or emotional status would be

detrimental to the child or prevent the parent [] from effectively providing safe and stable

care and supervision for the child.” Tenn. Code Ann. § 36-1-113(i)(8). The trial court

found that Mother’s “history continues to repeat itself” through her inability to parent her

other children and issues with violence. It found that Avery has already suffered adverse

childhood experiences and “needs no more.” We agree.

Finally, we consider whether the parent has paid child support consistent with the

child support guidelines promulgated by the department. Tenn. Code Ann. § 36-1-

113(i)(9). The trial court found that Mother has not. We agree.

The trial court went on to list and address the twenty best interest factors that are

currently found in the termination statute and made additional findings regarding those.

See Tenn. Code Ann. § 36-1-113(i)(1)(A)-(T). The trial court found that Avery has many

critical medical needs and that if he missed appointments and services because his

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custodian was not trained in how to care for him, “it could be a death sentence.” The trial

court found that Avery is developmentally delayed and has had difficulty walking and

speaking, and Mother simply “cannot handle” his emotional, psychological, and medical

conditions, as she has not shown interest in learning about them. The trial court found that

Mother’s last visit was in 2021 and that she failed to take advantage of the opportunity she

had to see Avery at Christmas in 2022 when Aunt reached out about exchanging gifts. The

court found that Aunt is providing for Avery’s critical needs, “working day in and day out”

to help him reach his maximum potential, he has remained with her for about six years,

and he is physically improving with the help of his support systems. It found that Avery

“is with the family that he knows as mom and dad, although he cannot even say the words,

‘mom’ and ‘dad’ because someone abused him.” The evidence in the record fully supports

these additional findings as well.

Curiously, Mother suggests on appeal that the trial court failed to consider the

relevant best interest factors and that “a termination of his rights [sic] warranted a more

thorough and in-depth consideration.” However, the trial court went through both sets of

factors, the previous nine and the current twenty, and made extensive findings in its 33-

page order. We find absolutely no support for Mother’s argument.

Having carefully reviewed the entire record, we conclude that the proof does not

preponderate against the trial court’s factual findings, and we conclude that the facts,

viewed as a whole, amount to clear and convincing evidence that termination of parental

rights is in the best interest of Avery. See In re Neveah M., 614 S.W.3d at 680. Considering

the best interest of the child, from his perspective, it is clear that termination of parental

rights is in his best interest. Avery should finally be permitted to achieve permanency in

the only home he knows.

V. CONCLUSION

For the aforementioned reasons, the decision of the juvenile court is hereby reversed

in part and affirmed in part and remanded for further proceedings. Costs of this appeal are

taxed to the appellant, Kierria H., for which execution may issue if necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE

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