In Re Brooklyn S.

11/08/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 4, 2017 Session

IN RE BROOKLYN S., ET AL.

Appeal from the Circuit Court for Franklin County

No. 2016-CV-161 Judge Justin C. Angel

No. M2017-00390-COA-R3-JV

This is a dependent and neglect action in which the mother of three minor children

appeals the circuit court’s finding that her children were subjected to severe abuse and

that she “either committed the severe abuse herself, or knowingly failed to protect her

four month old infant from the severe abuse that led to his death.” Mother contends the

circuit court erred by allowing three grandparents who intervened in the juvenile court

proceedings to fully participate as parties in the circuit court proceedings. She further

contends the circuit court failed to conduct a true de novo hearing following her appeal

from the juvenile court, and that the circuit court erred by admitting the transcripts from

the juvenile court hearings into evidence. We affirm the trial court in all respects but one.

We find the evidence insufficient to clearly and convincingly establish that Mother

committed the severe abuse herself; however, we affirm the circuit court’s ruling that

Mother committed severe child abuse by knowingly failing to protect Hunter from the

severe abuse that led to his death.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed As Modified

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and RICHARD H. DINKINS, JJ., joined.

Peter Trenchi, III, Sewanee, Tennessee, for the appellant, Miranda S.1

Cailtyn Marie Callaway, Decherd, Tennessee, for the appellee, Bryan P.

Sandra I. Schefcik, Estil Springs, Tennessee, for the minor children, Brooklyn S. and

Dustin S.

1

This court has a policy of protecting the identity of children in parental termination cases by

initializing the last names of the parties.

Glen A. Isbell, Winchester, Tennessee, for the appellees, Deborah S. and Mark S.

Herbert H. Slatery, III, Attorney General and Reporter; Martha A. Campbell Assistant

Attorney General; and Jordan Keith Crews, Assistant Attorney General, for the appellee,

Tennessee Department of Children’s Services.

OPINION

On March 9, 2016, the Tennessee Department of Children’s Services (“the

Department”) filed a petition in the Juvenile Court of Franklin County, Tennessee for

emergency temporary legal custody of Miranda S.’s (“Mother”) children: Hunter S., born

in October 2015, Dustin S., born in September 2011, and Brooklyn S., born in April

2010. The Department also petitioned the court to find the three children dependent and

neglected. Mother’s boyfriend, Bryan P., was alleged to be the perpetrator of the severe

abuse, and Mother was accused of failing to protect her children. On April 27, 2016, the

Department filed an amended petition alleging that Mother committed severe abuse or

knowingly failed to protect Hunter from severe abuse.

Following a hearing, the juvenile court entered an order on June 10, 2016, finding

that Bryan P. had committed the severe abuse and that Mother had failed to protect the

children. Mother timely appealed to the Circuit Court of Franklin County on June 20,

2016. The appeal was heard in the circuit court on December 6, 2016. In an order entered

on February 6, 2017, the circuit court found that Mother “either committed the severe

abuse herself” against Hunter, “or knowingly failed to protect [him] from the severe

abuse that led to his death.” On February 22, 2017, Mother filed a timely appeal to this

court.

The most relevant facts and additional details of the procedural history of this case

are summarized as follows. On March 3, 2016, 5-month-old Hunter was admitted to the

emergency room in respiratory and cardiac distress. The infant had been in the care of

Bryan P. while Mother ran errands at a nearby store. According to Mother’s testimony,

Hunter was fine before she left to run errands. The child was transferred almost

immediately to Vanderbilt Children’s Hospital, where the Department got involved after

medical staff suspected the child was suffering from non-accidental injuries.

Dr. Deborah Lowen, a child-abuse specialist at Vanderbilt, diagnosed Hunter with

brain hemorrhaging, multiple bruises on his ear, face, torso and anus, and a torn

frenulum. An MRI of Hunter’s brain revealed hemorrhaging throughout certain areas of

his brain caused by “non-accidental trauma,” and a spinal MRI revealed subdural

hematoma extending from T8 to S2 on Hunter’s spine. Dr. Lowen concluded that

Hunter’s injuries were caused by “physical abuse.”

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On March 9, 2016, the Department petitioned the Franklin County Juvenile Court

for emergency temporary legal custody of Hunter, Dustin, and Brooklyn, and to find the

three children dependent and neglected.2 At the preliminary hearing, Mother testified that

she did not think Bryan P. caused Hunter’s injuries because he had watched her children

before with no incident. However, Mother also admitted that Hunter was fine when she

left for Walmart, but that he was having trouble breathing when she returned thirty

minutes later, and that Bryan P. was the only adult with Hunter during that time.

The juvenile court entered a supplemental protective custody order on March 11,

2016. The court specifically found that Mother’s testimony at the preliminary hearing

was “evasive, at best. She failed to protect Hunter. She continued to defend her boyfriend

and even implied that she could have been responsible for the child’s injuries.” Brooklyn

and Dustin were placed in the custody of their great aunt and uncle, Michelle and Bruce

S. This same day, Hunter died from the internal respiratory injuries he suffered.

A few days later, Jacob S., the biological father of Dustin and Hunter, and his

parents, Mark and Deborah S., filed an intervening petition for custody of Brooklyn and

Dustin.3 The parties later amended their petition to seek custody of only Dustin. Around

this same time, Timothy E., Brooklyn’s paternal grandfather, also filed an intervening

petition for her custody. Following a hearing on March 23, 2016, Dustin was placed in

the temporary legal custody of Mark and Deborah S., and Brooklyn was placed in the

temporary legal custody of Timothy E. Jacob S. was granted supervised visits with

Dustin. Mother was ordered to have no contact with the children.

On April 27, 2016, the Department filed an amended petition to include the

ground of severe abuse, alleging that Mother committed severe abuse against Hunter or

knowingly failed to protect Hunter from severe abuse. This new allegation was based on

Mother’s testimony at the March 23 preliminary hearing, and Mother’s behavior on that

day. She was observed sitting close to and “being amorous towards” Bryan P. before the

hearing, despite Mother’s knowledge of the accusations against him.

The juvenile court conducted an adjudicatory hearing on May 27, 2016. Jaclyn P.,

Bryan P’s ex-wife, testified about text messages she saw on Bryan’s phone regarding

abuse of Dustin and Brooklyn. One message from Mother to Bryan told him to keep

Dustin home from school and away from other family members because of the “marks on

his butt, his back and his neck.” Bryan sent a message back apologizing to Mother for

2

These three children were the children of the Appellant, Miranda S. The petition also concerned

three other children and their parents; however, because those children are not the subject of this appeal,

this opinion will only address issues and facts related to Hunter, Dustin, and Brooklyn.

3

Jacob’s parents joined in the petition seeking custody of his son, Dustin, because Jacob was

incarcerated at the time, but due to be released in a few weeks.

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whipping Dustin, and Mother replied that “it was okay” because Dustin “hasn’t acted up

anymore.” In another message, Mother said that Bryan had “slapped the h-e-1-1 out of

[Brooklyn] and blackened her eye.” Jaclyn P. testified that these messages were sent

before the March 3, 2016 incident involving Hunter. When Bryan P. was called to the

witness stand to testify, he acknowledged that his attorney had advised him of his rights

under the Fifth Amendment to not testify. Based on this response, the judge went on to

advise Bryan P. that if he asserted his right to not answer questions that “the court may

draw what is called a negative inference. That is, I can hold it against you in the custody

case for failure to answer.” When asked if he understood he responded affirmatively and

informed the court that he elected to not testify at the adjudicatory hearing. When Mother

was called to testify, she too acknowledged that her attorney had advised her of her rights

under the Fifth Amendment to not testify and acknowledged knowing that the court may

draw a negative inference from her choosing to not answer questions at the hearing.

Following this colloquy, Mother was asked a question to which she responded by stating

“Fifth Amendment,” and informed the court that she would not testify at the adjudicatory

hearing.

Pursuant to an order entered on June 10, 2016, the juvenile court adjudicated the

children dependent and neglected due to severe abuse by Bryan P. “for the act,” and

severe abuse by Mother “for the act or failure to protect” Hunter from abuse. Because

Mother asserted her Fifth Amendment right and did not testify at the adjudicatory

hearing, the court took judicial notice of her prior testimony from the preliminary

hearing. The court based its finding of severe abuse on Mother’s prior testimony and on

Hunter’s medical records, which showed a “non-accidental trauma diagnosis.” The court

also took judicial notice that Hunter was now deceased. Mother filed a timely appeal to

the circuit court. Bryan P. did not appeal.

The circuit court held a de novo hearing on December 6, 2016, during which four

witnesses testified in person. Mother testified in circuit court, but she declined to answer

most questions based on her Fifth Amendment rights. Specifically, when asked about her

relationship with Bryan P., whether she knew he had abused Hunter and her other

children, whether some of the abuse of the children happened in her presence, whether

she attempted to cover up injuries to the children, and whether she made statements to

others admitting Bryan’s abuse of the children, Mother asserted the Fifth Amendment.

She did, however, admit to “sitting quite close and intimately with [Bryan P.]” in the hall

outside the courtroom prior to the preliminary hearing and knowing at that time of the

allegations that Bryan P.’s abuse of Hunter caused Hunter’s death. Due in part to

Mother’s decision to not answer numerous questions during the de novo hearing in circuit

court, transcripts from both the preliminary hearing and the adjudicatory hearing were

entered as exhibits for impeachment purposes. Mother agreed to the admissibility of the

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transcripts for the purpose of “impeachment only”; however, she objected to the

admissibility of the transcripts for any other reason.4

Estill Springs Chief of Police Allen Rhodes testified regarding a criminal

investigation he conducted of Bryan P., who was subsequently charged with second-

degree murder of Hunter. As part of the investigation, Chief Rhodes subpoenaed cell

phone records. Text messages revealed that Mother and Bryan P. discussed an incident

with Hunter that happened on March 1, 2016, two days before Hunter went to the

emergency room. Chief Rhodes testified that in one text message, Mother stated to Bryan

P., “I know it wasn’t done on purpose. . . . Things happen.” Bryan P. responded that,

“someone is going to think he’s abused and he was left with me.” Chief Rhodes

interviewed Mother in July 2016. During the interview, Mother admitted that she sent

text messages stating that Dustin received bruises when he was disciplined by Bryan P.,

but that she “wanted to keep it from the family.”

Deborah S., Dustin and Hunter’s paternal grandmother, testified that when Mother

brought the children to her house on March 1, 2016, Hunter had a black eye and “a bruise

going all the way around his face.” Deborah S. suspected abuse, and testified to Mother’s

“cold-hearted” behavior throughout Hunter’s hospitalization at Vanderbilt. After Deborah

S. gained custody of Dustin on March 23, 2016, Dustin described instances of abuse he

suffered at the hands of Bryan P.

Timothy E., Brooklyn’s paternal grandfather, testified that his son, Nicholas E.,

was Brooklyn’s father. After Nicholas died in 2012, Mr. E. filed a petition for visitation

with Brooklyn, and Brooklyn has spent one weekend per month with Mr. E. since March

2013. Mr. E. gained custody of Brooklyn on March 23, 2016. Brooklyn told him that

Bryan P. “whipped Dustin bad” and “hurt him.” She also said that Mother broke a paddle

on Dustin.

At the end of the hearing the court took the matter under advisement. On February

6, 2017, the circuit court’s order was entered, in which it made detailed findings of fact

and conclusions of law:

FINDINGS OF FACT

1. The State of Tennessee, Department of Children’s Services (hereinafter

“DCS”) filed a Petition for (Emergency) Temporary Legal Custody on

March 9, 2016, in the Franklin County, Tennessee Juvenile Court

(hereinafter “Juvenile Court”).

4

Specifically, Mother’s counsel informed the circuit court that he did not object to the admission

of the transcripts for impeachment purposes.

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2. The Petition alleged the minor children, Brooklyn [S.] and Dustin [S.],

along with four other minor children, were dependent and neglected by

the parents. One parent is Miranda [S.], the Respondent in this case.

3. On March 10, 2016, the Juvenile Court ordered that the minor child,

Hunter [S.], could be removed from the respirator at the Vanderbilt

Hospital in Nashville, Tennessee where he had been hospitalized since

March 4, 2016. His injuries were caused by severe physical abuse

according to the Vanderbilt medical staff.

4. Thereafter, Hunter died on March 11, 2016. The [S.] children’s

temporary custody was placed with Bruce and Michelle [S.], paternal

great uncle and aunt. By Order of the Juvenile Court filed on March 11,

2016, the Juvenile Court found that the children were dependent and

neglected by the mother, Miranda [S.], and her paramour, Bryan [P.],

who had custody at the time.

5. At a hearing on March 23, 2016, the Juvenile Court ordered that

Brooklyn [S.]’s custody be placed with the maternal grandfather,

Timothy [E.], and that Dustin [S.]’s custody be placed with the paternal

grandparents, Mark and Deborah [S.].

6. DCS filed its Amended Petition on April 13, 2016, alleging severe

abuse and improper supervision by the mother, Amanda [sic] [S.], by

knowingly failing to protect Hunter [S.] from harm, which ultimately

led to his death.

7. On May 27, 2016, the Juvenile Court adjudicated the children as being

dependent and neglected with a severe abuse finding against their

mother, Amanda [sic] [S.], for failure to protect the child, Hunter [S.].

Further, the Juvenile Court found mother’s paramour, Bryan [P.], guilty

of severe abuse, non-accidental trauma to the child, Hunter [S.].

8. The Juvenile Court held a review hearing on August [sic] 17, 2016. The

mother appealed the case to the Franklin County Circuit Court on June

20, 2016. The Circuit Court requested the parties brief the issue of

whether it has jurisdiction since the Juvenile Court continues to review

the case.

9. The Circuit Court ruled that though the Juvenile Court continues to hold

hearings reviewing the case, this Court would consider this appeal.

10. Bryan [P.] failed to answer or appear at the December 6, 2016. DCS

moved for a default judgment against Bryan [P.] and the Court granted

same.

11. At the December 6, 2016, hearing the mother, Amanda [sic] [S.], pled

her Constitutional Fifth Amendment right not to answer the questions

asked of her. The Court takes a negative inference of the mother

invoking the 5th Amendment, as this is a civil matter, per Baxter v.

Palmigiano, 425 U.S. 308, 316-320, 96 S. Ct. 1551, 1557-1559, 47 L.

Ed. 2d 810 (1976). She invoked the 5th Amendment regarding her

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continued involvement with Brian [P.], knowing of the severity of the

harm to Hunter, her child; whipping Dustin too hard, keeping Dustin out

of school due to physical abuse inflicted, Brooklyn having a black eye

caused by either Brian [P.] or Miranda [S.].

12. As part of the de novo review, the Court entered the Preliminary Order

from the Juvenile Court into the record as Exhibit 1.

13. Pursuant to Tennessee Code Ann. §37-1-129 (b)(2), this Court has

discretion on review of the case.

14. The Court admitted the medical records of the minor child, Hunter [S.],

into evidence as Exhibit 2, upon the stipulation to admit said medical

records by all counsel.

15. A medical record showing a photo of Hunter [S.] was admitted into

evidence as Exhibit 3.

16. After Hunter [S.] was admitted to Vanderbilt Hospital, the mother came

and went and did not consistently stay with the child.

17. The Juvenile Court transcript from the May 27, 2016, hearing was

admitted into evidence. According to that transcript, Bryan [P.] wife,

Jaqlyn [P.], testified that Miranda [P.] was aware that Bryan [P.] had

physically abused another of her minor children, Dustin [S.]. Mother

suggested to Bryan [P.] that they not take Dustin around family

members so they would not see Dustin’s bruises. Exhibit 5, the Juvenile

Court’s Adjudicatory Order, was admitted into evidence reflecting

Jaqlyn [P.]’s testimony.

18. Chief Alan Rhodes of the Estill Springs, Tennessee Police Department,

testified that through search warrants, the criminal investigation of

Hunter [S.]’s death revealed text messages between mother and Bryan

[P.] concerning Bryan [P.]’s abuse of Dustin [S.].

19. Pursuant to Rule 803(6), the text transcript messages were used to

impeach mother’s testimony that she was unaware of Bryan Power’s

abuse of her children.

20. Pursuant to Rule 118(i) of the Tennessee Juvenile Rules of Procedure,

all parties in the lower court are parties to the appeal. Therefore, the

minor children’s paternal grandparents and custodians, Mark [S.] and

Deborah [S.] and Timothy [E.], are parties to this appeal as intervening

Petitioners.

21. According to Deborah [S.]’s testimony and pursuant to Rule 803(25) (a

hearsay exception that evidence is admitted when made by a child under

13 years of age concerning abuse), Dustin [P.] told her that Bryan [P.]

had kicked and choked him. Additionally, Dustin told her that his

mother and Bryan [P.] had made him remain in the car for misbehaving

when they and the other children went into stores and restaurants.

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22. Deborah [S.] testified that prior to his death, Hunter [S.], an infant who

was not crawling or walking, had a black eye. Mother’s explanation was

he had fallen at her grandmother’s home.

23. Since Dustin [S.] has been in his grandparents’ custody, he has been

attending counseling since April 2016.

24. Timothy [E.], paternal grandfather and custodian of Brooklyn [S.],

testified that Brooklyn had told him Dustin [S.] been whipped badly by

Bryan [P.]. Also, that Miranda [S.] had whipped him so hard that it

broke the wooden paddle.

25. Timothy [E.] testified that Brooklyn had been in counseling since April

2016.

26. Mother had prior knowledge of Bryan [P.]’s abuse of her children and

failed protect her children from Bryan [P.]. Miranda [P.] is guilty of

severe abuse of her minor children.

CONCLUSIONS OF LAW

1. Brian [P.] is found to be in default by having proper notice and failing to

appear in open court for the De Novo Hearing of Adjudication, twice.

The Court finds severe abuse of dependency and neglect regarding

Brian [P.] accordingly.

2. Miranda [S.] either committed the severe abuse herself, which led to the

infant Hunter’s death, or she knowing failed to protect. From [sic] this

lethal harm. The evidence is clear and convincing that she made a

statement of admission of harm in her testimony at the Juvenile Court of

Franklin County. She failed to distance herself from the only other

person who could have killed her child, save herself. Evidence showed

through texts, that she attempted to hid [sic] from her family the abuse

going on within the household. Relatives testified to seeing abused

children, and to statements made by the children regarding the ongoing

abuse.

CONCLUSION

The Court, by a clear and convincing standard, finds that Miranda

[S.] either committed the severe abuse herself, or knowingly failed to

protect her four month old infant from the severe abuse that led to his

death. The Court finds severe abuse of dependency and neglect, by a clear

and convincing standard, regarding Miranda [S.].

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This appeal followed. Mother raises seven issues which we paraphrase and

consolidate as follows.5 She contends the circuit court erred by allowing three

grandparents who intervened in the juvenile court proceedings to fully participate as

parties in the circuit court proceedings. She contends the circuit court failed to conduct a

true de novo hearing following her appeal from the juvenile court. She contends the

circuit court erred by admitting the transcripts from the juvenile court hearings into

evidence. She also contends that the definition of “knowing,” as found in Tenn. Code

Ann. § 37-1-102(b)(21), is not sufficiently defined to put a party on notice of their duty to

act, and to guide the court in determining a parent’s “knowing” behavior.

STANDARD OF REVIEW

Severe child abuse in a dependency and neglect action must be established by

clear and convincing evidence. In re S.J., 387 S.W.3d 576, 587 (Tenn. Ct. App. 2012).

For the evidence to be clear and convincing, it must eliminate any serious or substantial

doubt about the correctness of the conclusions to be drawn from the evidence. In re

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Stated another way, evidence satisfying this

standard establishes that the truth of the facts asserted is “highly probable and eliminates

any serious or substantial doubt about the correctness of the conclusions drawn from the

evidence.” In re S.J., 387 S.W.3d at 587.

5

The issues as stated by Mother are as follows:

1. The trial court erred by applying the Rules of Juvenile Procedure adopted on July 1,

2016 and thus allowed custody seeking intervenors to participate as a party by calling

witnesses and presenting evidence.

2. The trial court erred by allowing transcripts from the hearings in the juvenile court

below to be admitted into evidence, and thus negated the de novo aspect of the appeal

hearing.

3. The trial court erred by allowing submission of evidence of the Mother’s behavior

after the abuse incident to be used to prove her knowing state of mind prior to the

abuse incident in support of a finding of failure to protect.

4. The trial court erred in finding clear and convincing evidence that the Mother had

specific reason to know or had been presented with sufficient facts from which she

could have and should have recognized that severe child abuse might occur.

5. The trial court erred by conducting more of a record review than a true de novo

hearing and the trial court failed to follow proper civil procedure to determine the

scope of what was to be considered as part of the de novo hearing.

6. The definition of knowing as used in T.C.A. § 37-1-102(B)(21) is not sufficiently

defined to properly place a party on notice of their duty to act and to guide a court in

adjudicating the question of a parent’s knowing behavior.

7. The court failed to properly find by clear and convincing evidence that the Mother

Miranda S. could have committed the harmful act that led to the demise of Hunter S.

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This court reviews a trial court’s findings of fact de novo on the record

accompanied by a presumption of correctness, “unless the preponderance of the evidence

is otherwise.” In re Tamera W., 515 S.W.3d 860, 871 (Tenn. Ct. App. 2016), appeal

denied (Feb. 8, 2017)(citing Tenn. R. App. P. 13(d); In re M.J.B., 140 S.W.3d 643, 654

(Tenn. Ct. App. 2004)). “If some of the trial court’s factual findings are based on its

determinations of the credibility of the witnesses, then this Court will afford great weight

to those credibility determinations and will not reverse such determinations absent clear

evidence to the contrary.” Id. (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415

(Tenn. 1995)).

“To the extent the trial court made findings of fact in support of the ultimate

issues, we review the factual findings pursuant to Tennessee Rule of Appellate Procedure

13(d), i.e., de novo with a presumption of correctness unless the evidence preponderates

otherwise.” Id. (citing In re A.T.P., No. M2006-02697-COA-R3-JV, 2008 WL 115538, at

*4 (Tenn. Ct. App. Jan. 10, 2008) (holding that findings of fact in a dependency and

neglect action for severe child abuse are “presumed to be correct unless the evidence

preponderates against them”); see also In re Adoption of A.M.H., 215 S.W.3d 793, at

808-09 (Tenn. 2007). However, a trial court’s “conclusions of law concerning the

ultimate issues are reviewed de novo without a presumption of correctness.” Id. (citing S.

Constructors, Inc. v. Loudon Cnty. Board of Educ., 58 S.W.3d 706, 710 (Tenn. 2001)).

Therefore, we review a trial court’s specific findings of fact in support of its

ultimate conclusions de novo, pursuant to Tennessee Rule of Appellate Procedure 13(d),

with a presumption of correctness, while we review the conclusions of law, such as

whether a parent engaged in severe child abuse, de novo with no presumption of

correctness. Id.

ANALYSIS

I. INTERVENING PARTIES

Mother contends the circuit court erred by allowing intervening parties who are

seeking custody of the children to participate as parties, to call witnesses, and to present

evidence. More specifically, she contends this was error because the rule the circuit court

relied on to permit their intervention, that being Rule 118(i) of the Rules of Juvenile

Procedure, was not in effect when Mother perfected her appeal to the circuit court.

Although the Department admits the rule was not in effect at the time, it insists the

intervention by the grandparents was proper because Tennessee Rule of Juvenile

Procedure 118(a) provides that “[a]ppeals shall be taken pursuant to Tenn. Code Ann. §

37-1-159,” and Section 37-1-159(a) provides that “[a]ll parties to the juvenile court

proceeding shall be parties to the de novo appeal.” The Department further asserts that

the statute is procedural; thus, it applies retrospectively. We are in agreement with the

Department’s position on this issue.

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The record reveals that Mark and Deborah S. and Timothy E.6 joined in the action

with the permission of the juvenile court as intervening parties and they fully participated

as parties while the action was pending in the juvenile court. Following an evidentiary

trial, and after the juvenile court made its ruling and entered its final order, Mother

perfected an appeal to the circuit court, and the intervening parties fully participated as

parties in the circuit court proceedings.

Tennessee Code Annotated § 37-1-159(a), which went into effect on July 1, 2016,

after Mother perfected her appeal to the circuit court, provides:

(a) The juvenile court shall be a court of record; and any appeal from any

final order or judgment in a delinquency proceeding, filed under this

chapter, except a proceeding pursuant to § 37-1-134, may be made to the

criminal court or court having criminal jurisdiction that shall hear the

testimony of witnesses and try the case de novo. Any appeal from any final

order or judgment in an unruly child proceeding or dependent and neglect

proceeding, filed under this chapter, may be made to the circuit court that

shall hear the testimony of witnesses and try the case de novo. . . . All

parties to the juvenile court proceeding shall be parties to the de novo

appeal.

(Emphasis added).

Therefore, if the statute applies retrospectively, the intervenors were proper parties

to the circuit court proceedings. Mother contends the statute does not apply because it

was not in effect when she perfected her appeal to the circuit court. We have determined

the statute applies retrospectively to this case because the statute is procedural, not

substantive. See State Dep’t. of Human Servs. v. Defriece, 937 S.W.2d 954, 958 (Tenn.

Ct. App. 1996) (Whether a statute may apply retrospectively may depend on “whether the

statute at issue here is remedial or procedural - as opposed to substantive - in nature.”).

Statutes are presumed to operate prospectively; however, there are exceptions. Kee

v. Shelter Ins., 852 S.W.2d 226, 228 (Tenn. 1993). One of the exceptions is statutes that

are procedural in nature. Id.

Such statutes apply retrospectively, not only to causes of action arising

before such acts become law, but also to all suits pending when the

legislation takes effect, unless the legislature indicates a contrary intention

6

The intervening parties are Mark and Deborah S., the paternal grandparents of Dustin and

Hunter, and Timothy E., Brooklyn’s paternal grandfather. Each of them intervened while the matter was

pending in the juvenile court.

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or immediate application would produce an unjust result. The exception is

also limited by the principle that retrospective application of a remedial or

procedural statute is constitutionally forbidden if it takes away a vested

right or impairs contractual obligations.

Id. (internal citations omitted).

“Procedure” is defined as:

[T]he mode or proceeding by which a legal right is enforced, as

distinguished from the law which gives or defines the right, and which by

means of the proceeding, the court is to administer—the machinery, as

distinguished from its product; . . including pleading, process, evidence,

and practice. . . . Practice [is] the form . . . for the enforcement of rights or

the redress of wrongs, as distinguished from the substantive law which

gives the right or denounces the wrong.

Defriece, 937 S.W.2d at 958 (quoting Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn.

1976)).

A remedial statute is “[l]egislation providing means or method whereby causes of

action may be effectuated, wrongs redressed and relief obtained.” Id. (quoting Black’s

Law Dictionary 1293 (6th ed. 1990)). Furthermore, a statute that changes a rule of

practice applies to all pending cases. See id.; see also Frame v. Marlin Firearms Co., 514

S.W.2d 728,730 (Tenn. 1974).

Tennessee Code Annotated § 37-1-159(a) is clearly procedural because it does not

create any substantive rights and, therefore, it does not affect any vested right. See

Defriece, 937 S.W.2d at 958-59 (‘[T]he General Assembly may implement procedural or

remedial changes in the law, . . .”). Moreover, it may be applied retrospectively because it

merely provides that all parties to the juvenile court proceeding are parties to the de novo

hearing. See Frame, 514 S.W.2d at 729-30 (holding that an amendment to a Tennessee

statute allowing interlocutory appeals in multiple-party cases, “being a procedural statute,

is remedial and may be given retrospective effect”).

Because the intervenors, the grandparents who had custody of the surviving

children, were parties to the juvenile court proceeding, they were automatically parties to

the de novo appeal in the circuit court. See Tenn. Code Ann. § 37-1-159(a); see also

Tenn. R. Juv. P. 118(a) and (i). Therefore we find no error with their participation as

parties in the de novo hearing in circuit court.

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II. DE NOVO HEARING IN CIRCUIT COURT

Mother contends the judgment of the circuit court must be reversed because the

circuit court failed to conduct a true de novo hearing. She contends the circuit court

conducted “more of a record review than a true de novo hearing,” and merely reviewed

the decision of the juvenile court. In this regard, Mother relies on the fact that the circuit

court allowed transcripts from the hearings in the juvenile court to be admitted into

evidence, and the circuit court considered that evidence.7 The Department insists the

circuit court held a de novo hearing as the law requires, that a de novo hearing does not

require the circuit court to proceed as if the juvenile court case never happened, and the

transcripts were properly admitted and considered for impeachment purposes. We agree

with the Department.

In dependency and neglect cases, an appeal from the juvenile court to the circuit

court is not the same as this court’s review of trial court decisions as set out in the

Tennessee Rules of Appellate Procedure. See In re Tamera W., 515 S.W.3d at 870. By

statute, the circuit court is to “hear the testimony of witnesses and try the case de novo.”

Tenn. Code Ann. § 37-1-159(a). A de novo trial is “[a] new trial on the entire case - that

is, on both questions of fact and issues of law - conducted as if there had been no trial in

the first instance.” In re Tamera W., 515 S.W.3d at 870 (quoting Kissick v. Kallaher, No.

W2004-02983-COA-R3-CV, 2006 WL 1350999, at *3 (Tenn. Ct. App. May 18, 2006)).

Therefore, the circuit court is not reviewing the juvenile court’s decision; it is conducting

a new proceeding as though the petition was originally filed in circuit court. Id.

The record reveals that the circuit court heard the live testimony of Mother, Chief

Rhodes, Deborah S., and Timothy E., and it also admitted into evidence and considered

Hunter’s medical records and photographs of Hunter as exhibits. The Department insists

that this evidence “did not stem from the juvenile court proceeding, but was

independently heard and admitted by the circuit court,” and the record supports the

Department’s position.

The Department also correctly notes that a de novo hearing “does not require the

circuit court to literally proceed as if the juvenile court case never happened.” In re

Madison M., No. M2013-02561-COA-R3-JV, 2014 WL 4792793, at *5 (Tenn. Ct. App.

Sept. 25, 2014). It also relies on Tenn. Code Ann. § 37-1-159 which provides that the

circuit court will have before it the entire juvenile-court record. See Tenn. Code Ann. §

37-1-159(c) (“When an appeal has been perfected, the juvenile court shall cause the

entire record in the case . . . to be taken forthwith to the criminal court or circuit court

whose duty it is, either in term or in vacation, to set the case for an early hearing.”).

Therefore, the circuit court was authorized to consider “the entire Juvenile Court record .

7

We have combined Mother’s second and fifth issues for our analysis.

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. . in addition to the evidence submitted in the de novo trial.” In re Isaiah L., 340 S.W.3d

692, 707-08 (Tenn. Ct. App. 2010); see also In re K.A.P., No. W2012-00281-COA-R3-

JV, 2013 WL 6665012, at *6 (Tenn. Ct. App. Dec. 17, 2013) (“Tennessee Code

Annotated § 37-1-159 directs the circuit court to conduct its own de novo trial, but also

permits it to consider the juvenile court record”).

As for the admission of the transcripts from the juvenile court proceedings, the

admission or exclusion of evidence is a discretionary decision. See White v. Beeks, 469

S.W.3d 517, 527 (Tenn. 2015). “We review a trial court’s decision to admit or exclude

evidence under an abuse of discretion standard.” Id. For the reasons stated below, we find

no abuse of discretion with the admission into evidence and consideration of Mother’s

testimony from the juvenile court proceedings.

The admission and consideration of the transcripts from the juvenile court

proceedings was appropriate because, inter alia, Mother was an unavailable witness

pursuant to Tenn. R. Evid. 804. A declarant is “unavailable” when she “is exempted by

ruling of the court on the grounds of privilege from testifying concerning the subject

matter of the declarant’s statement.” Tenn. R. Evid. 804(a)(1). Mother invoked her Fifth

Amendment privilege against self-incrimination in response to numerous questions

during the de novo hearing in the circuit court. As a consequence, she was “unavailable”

for purposes of Rule 804. See State v. Dotson, 254 S.W.3d 378, 392 (Tenn. 2008)

(“When [the declarant] asserted his Fifth Amendment privilege against self-

incrimination, he became ‘unavailable’ for the purpose of Rule 804 of the Tennessee

Rules of Evidence”). Therefore, an unavailable declarant’s former testimony is not

excluded by the hearsay rule — that is, “testimony given as a witness at another hearing

of the same or a different proceeding . . . if the party against whom the testimony is now

offered had both an opportunity and a similar motive to develop the testimony by direct,

cross, or redirect examination.” Tenn. R. Evid. 804(b)(1).

As the Department correctly states in its brief, the former testimony of an

unavailable declarant is not excluded by the hearsay rule if the testimony was given at

another hearing of the same or a different proceeding and “the party against whom the

testimony is now offered had both an opportunity and a similar motive to develop the

testimony by direct, cross, or redirect examination.” Tenn. R. Evid. 804(b)(1). Mother

had both the “opportunity” and “similar motive” to develop the testimony at all three

hearings involving the same parties and issues. Specifically, Mother’s similar motive

during the juvenile court hearings and the circuit court de novo hearing was to establish

that she did not knowingly harm or fail to protect Hunter from the abuse that caused his

death. Because Mother asserted her right to remain silent in response to most of the

questions asked of her in the circuit court de novo hearing, the circuit court had the

discretion to consider Mother’s prior testimony as reflected in the transcripts from the

juvenile court proceedings, and we find no abuse of that discretion.

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For the foregoing reasons, we find no error with the circuit court considering the

juvenile court record along with Mother’s prior testimony as reflected in the transcripts

from the juvenile court proceedings.

III. SUFFICIENCY OF EVIDENCE OF SEVERE ABUSE

Mother challenges the finding of severe abuse on several grounds.8 She contends

the circuit court erred in finding that Mother had specific reason to know or had been

presented with sufficient facts from which she could recognize that severe child abuse

might occur. She also contends the circuit court erred by considering evidence of her

behavior after the abuse incident to prove her knowing state of mind prior to the abuse.

The Department insists the record contains competent evidence that clearly and

convincingly supports the circuit court’s finding that Mother committed severe child

abuse by failing to protect Hunter.

Severe child abuse in a dependency and neglect action must be established by

clear and convincing evidence. In re S.J., 387 S.W.3d at 587. For the evidence to be clear

and convincing, it must eliminate any serious or substantial doubt about the correctness

of the conclusions to be drawn from the evidence. In re Valentine, 79 S.W.3d 539 at 546.

Stated another way, evidence satisfying this standard establishes that the truth of the facts

asserted is “highly probable and eliminates any serious or substantial doubt about the

correctness of the conclusions drawn from the evidence.” In re S.J., 387 S.W.3d at 587.

This court reviews a trial court’s findings of fact de novo on the record

accompanied by a presumption of correctness, “unless the preponderance of the evidence

is otherwise.” In re Tamera W., 515 S.W.3d at 871 (citing Tenn. R. App. P. 13(d); In re

M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004)). “If some of the trial court’s factual

findings are based on its determinations of the credibility of the witnesses, then this Court

will afford great weight to those credibility determinations and will not reverse such

determinations absent clear evidence to the contrary.” Id. (citing McCaleb v. Saturn

Corp., 910 S.W.2d 412, 415 (Tenn. 1995)).

“To the extent the trial court made findings of fact in support of the ultimate

issues, we review the factual findings pursuant to Tennessee Rule of Appellate Procedure

13(d), i.e., de novo with a presumption of correctness unless the evidence preponderates

otherwise.” Id. at 871 (citing In re A.T.P., No. M2006-02697-COA-R3-JV, 2008 WL

115538, at *4 (Tenn. Ct. App. Jan. 10, 2008) (holding that findings of fact in a

dependency and neglect action for severe child abuse are “presumed to be correct unless

the evidence preponderates against them”); see also In re Adoption of A.M.H., 215

8

These contentions are stated in two of her issues, three and four, which we combine for our

analysis.

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S.W.3d at 808-09. However, a trial court’s “conclusions of law concerning the ultimate

issues are reviewed de novo without a presumption of correctness.” Id. (citing S.

Constructors, Inc. v. Loudon Cnty. Board of Educ., 58 S.W.3d 706, 710 (Tenn. 2001)).

Therefore, we review a trial court’s specific findings of fact in support of its

ultimate conclusions de novo, pursuant to Tennessee Rule of Appellate Procedure 13(d),

with a presumption of correctness, while we review the conclusions of law, such as

whether a parent engaged in severe child abuse, de novo with no presumption of

correctness. Id.

“Severe child abuse” is defined at Tenn. Code Ann. § 37-1-102(b)(22)(A)(i) to

mean:

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; . . .

(emphasis added). The statute goes on to say that “serious bodily injury” shall have the

same meaning given in Tenn. Code Ann. § 39-15-402(d). Tenn. Code Ann. § 37-1-

102(b)(22)(A)(ii). Therefore, we turn to Tenn. Code Ann. § 39-15-402(d) to examine

what meets the definition of a serious bodily injury to a child. According to the statute,

“Serious bodily injury to the child” includes, but is not limited to, second-

or third-degree burns, a fracture of any bone, a concussion, subdural or

subarachnoid bleeding, retinal hemorrhage, cerebral edema, brain

contusion, injuries to the skin that involve severe bruising or the likelihood

of permanent or protracted disfigurement, including those sustained by

whipping children with objects.

Tenn. Code Ann. § 39-15-402(d).

The statutory definition of a dependent and neglected child includes any child who

is “under such improper guardianship or control as to . . . endanger the . . . health of such

child or others.” The term “knowing,” although not statutorily defined, it has been clearly

and succinctly described by this court as follows:

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.

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In re Samaria S., 347 S.W.3d 188, 206 (Tenn. Ct. App. 2011).

Because there are seldom witnesses to child abuse, the “knowing” element is often

“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. Furthermore, this element “is not limited to

parents who are present when severe abuse actually occurs.” In re H.L.F., 297 S.W.3d

223, 236 (Tenn. Ct. App. 2009) (quoting In re R.C.P., No. M2003-01143-COA-R3-PT,

2004 WL 1567122, at *7 (Tenn. Ct. App. July 13, 2004). Instead, as we explained in In

re H.L.F.:

A parent’s failure to protect a child will also be considered knowing if the

parent had been presented with sufficient facts from which he or she could

have and should have recognized that severe child abuse had occurred or

that it was highly probable that severe child abuse would occur.

Id. (quoting In re R.C.P., 2004 WL 1567122, at *7) (internal citations omitted).

Accordingly, a parent’s conduct is knowing, and a parent acts or fails

to act knowingly, when . . . she has actual knowledge of the relevant

facts and circumstances or when . . . she is either in deliberate

ignorance of or in reckless disregard of the information that has been

presented to . . . her.

Id. (quoting In re R.C.P., 2004 WL 1567122, at *7) (emphasis added).9

Dr. Lowen, the child-abuse specialist at Vanderbilt, concluded that Hunter’s

injuries were caused by physical abuse and the record clearly and convincingly

established that that Mother knew or should have known that it was highly probable that

Hunter would be severely abused. This is evident because Mother was most assuredly

aware of Bryan P.’s previous abuse of her other children. During Chief Rhodes’

interview of Mother, she admitted that she sent text messages stating that Dustin received

bruises when he was disciplined by Bryan P., and that she “wanted to keep it from the

family.” When asked about these text messages at the hearing in circuit court, Mother

refused to testify, and the circuit court correctly drew a negative inference from her

silence. See Sikora ex rel. Mook v. Mook, 397 S.W.3d 137, 147 (Tenn. Ct. App. 2012)

(“[A] trier of fact may draw a negative inference from a party’s invocation of the Fifth

9

For her sixth issue, Mother contends that the definition of “knowing” as used Tenn. Code Ann.

§ 37-1-102(B)(21) is not sufficiently defined to properly place a party on notice of their duty to act and to

guide a court in adjudication the question of a parent’s “knowing behavior.” We respectfully disagree and

rely on our “knowing” analysis in this section to address that issue without the need of doing so in a

separate section of this opinion.

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Amendment privilege in a civil case when there is independent evidence of the fact to

which a party refuses [to] answer by invoking the Fifth Amendment privilege.”); see also

Akers v. Prime Succession of Tenn., Inc., 387 S.W.3d 495, 506 (Tenn. 2012).

Additional independent evidence that fully supports this inference is that, prior to

Hunter’s fatal injury, Jaclyn P., Bryan P.’s ex-wife, saw several text messages to and

from Mother on Bryan’s phone describing abuse of the children and their intent to

conceal it. In one text message Mother sent to Bryan, she told him that they had to keep

Dustin home from school and away from family because of the “marks on his butt, his

back and his neck.” Bryan P. responded to the message apologizing to Mother for

whipping Dustin, and Mother replied that “it was okay.” In another message Mother

texted that they needed to keep Dustin “away from his dad’s side of the family” because

she did not want them to know the way Bryan P. “whipped Dustin.” In yet another text

message, Mother said that Bryan P. had “slapped the h-e-1-1 out of [Brooklyn] and

blackened her eye.”

In addition to the foregoing compelling evidence is the fact that Mother had prior

knowledge of Bryan P.’s severe abuse of the children. The record reveals that Hunter

suffered significant injuries to his head while in Bryan’s care two days before he suffered

the ultimately fatal injury. On March 1, 2016, which was two days before Hunter’s fatal

injury, Hunter arrived at Deborah S.’s house with a black eye and “a bruise going all the

way around his face,” yet Mother told Deborah S. that Hunter hit his head at Mother’s

grandmother’s house. The record contains no evidence to support Mother’s explanation.

In fact, the record reveals that this was a lie to cover up the abuse Hunter had

received from the hand of Bryan P. In a text message exchange between Mother and

Bryan P., Mother reveals that she lied to Deborah S. to conceal the truth. Mother’s and

Bryan’s phone records revealed that Mother sent a text message to Bryan on March 1,

2016, the same day Deborah S. asked Mother about Hunter’s bruised face and black eye,

wherein Mother stated, “I’m not going to lose anyone. I promise. And no one is going to

think that, because no one is going to see it. . . .” Nevertheless, Mother continued to leave

Hunter in Bryan’s care, and two days later Hunter died as a result of severe abuse by

Bryan.

Our courts are to look at the “combined weight of the facts” to determine if severe

child abuse has been shown.” In re S.J., 387 S.W.3d at 588. Using the clear and

convincing evidence standard, this court must “distinguish between the specific facts

found by the trial court and the combined weight of those facts.” Id. at 591 (quoting In re

Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct. App. 2007)).

Each specific underlying fact need only be established by a preponderance

of the evidence. Such specific underlying facts include whether a particular

injury suffered by the child was the result of nonaccidental trauma, and

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whether the caregiver’s conduct with respect to the injury was “knowing.”

Once these specific underlying facts are established by a preponderance of

the evidence, the court must step back to look at the combined weight of all

of those facts, to see if they clearly and convincingly show severe child

abuse.

Id. at 592.

Having considered the specific underlying facts, which were established by a

preponderance of the evidence, we conclude that the combined weight of those facts

clearly and convincingly established that Mother was aware of sufficient facts from

which she could have, and should have, recognized that it was highly probable that

Hunter would be severely abused. See In re Tamera W., No. W2015-01988-COA-R3-PT,

2016 WL 6610359, at *9 (Tenn. Ct. App. Nov. 9, 2016), appeal denied (Feb. 9, 2017)

(affirming that father committed severe child abuse by failing to protect his children

where father was “aware of the specific abuse the children sustained.”); see also In re

TM, No. M2005-02433-COA-R3-PT, 2006 WL 2040433, at *9 (Tenn. Ct. App. July 20,

2006) (affirming that the parents committed severe child abuse by failing to protect their

children where “the parents were clearly aware of the repeated abuse.”).

As we discussed earlier, for the evidence to be clear and convincing, it must

eliminate any serious or substantial doubt about the correctness of the conclusions to be

drawn from the evidence. In re Valentine, 79 S.W.3d at 546. To the extent the trial court

made findings of fact in support of the ultimate issue, such as severe child abuse, we

review the factual findings pursuant to Tennessee Rule of Appellate Procedure 13(d), i.e.,

de novo with a presumption of correctness unless the evidence preponderates otherwise.”

In re Tamera W., 515 S.W.3d at 871 (citing In re A.T.P., 2008 WL 115538, at *4

(holding that findings of fact in a dependency and neglect action for severe child abuse

are “presumed to be correct unless the evidence preponderates against them”); see also In

re Adoption of A.M.H., 215 S.W.3d at 808-09).

In this case, the circuit court made detailed findings of fact in support of its

conclusion that Mother committed severe abuse because she “knowingly failed to protect

[Hunter] from the severe abuse that led to his death” and the evidence does not

preponderate against this finding. Moreover, we have conducted a de novo review of the

circuit court’s conclusion of law that Mother committed severe child abuse by knowingly

failing to protect Hunter from the severe abuse that led to his death, and we concur with

that conclusion.

However, we are unable to agree with the circuit court’s alternative finding that

Mother also “committed the severe abuse herself.” Although there is evidence to support

this finding, we have concluded that the evidence is not sufficient to “eliminate any

serious or substantial doubt about the correctness of the conclusion that she committed

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the severe abuse herself. See In re Valentine, 79 S.W.3d at 546; see also In re S.J., 387

S.W.3d at 587 (evidence satisfying the clear and convincing standard must establish that

the truth of the facts asserted is “highly probable and eliminates any serious or substantial

doubt about the correctness of the conclusions drawn from the evidence”).

Therefore, we affirm the circuit court’s ruling that Mother committed severe child

abuse by knowingly failing to protect Hunter from the severe abuse that led to his death.

IN CONCLUSION

The judgment of the trial court is affirmed as modified and this matter is remanded

with costs of appeal assessed against the appellant, Miranda S.

________________________________

FRANK G. CLEMENT JR., P.J., M.S.

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