Brown v. State, No. E2004-01272-COA-R3-CV (TN 11/30/2004)
| Decision Date | 30 November 2004 |
| Docket Number | No. E2004-01272-COA-R3-CV.,E2004-01272-COA-R3-CV. |
| Parties | WILBURN LEE BROWN, JR., v. STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES. |
| Court | Tennessee Supreme Court |
Appeal from the Chancery Court for Cumberland County; No. 8976-8-03; Vernon Neal, Chancellor.
Judgment of the Chancery Court Affirmed; Case Remanded.
Wilburn Lee Brown, Jr., pro se Appellant.
Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the Appellee State of Tennessee, Department of Children's Services.
D. Michael Swiney, J., delivered the opinion of the court, in which Charles D. Susano, JR., and Sharon G. Lee, JJ., joined.
This appeal involves allegations of sexual abuse brought against Wilburn Lee Brown, Jr., ("Petitioner") by his stepdaughter. After the allegations were investigated, DCS concluded there was substantial and material evidence to support the allegations and the report of abuse would be "validated" pursuant to Tenn. Comp. R. & Regs. 0250-7-9-.02. Because Petitioner was employed at a youth development center, he was notified that his employer would be informed that he was the indicated perpetrator in a "validated" report of child sexual abuse and that Petitioner was no longer allowed to have access to children. After exhausting his administrative appeals, Petitioner appealed to the Trial Court. The Trial Court concluded there was substantial and material evidence to support the allegations of abuse and affirmed. Petitioner appeals and we, likewise, affirm.
This appeal involves Chapter 0250-7-9 of the Rules of the Tennessee Department of Children's Services titled "Due Process Procedures for Release of Child Abuse Records." The scope of these Rules is set forth in Tenn. Comp. R. & Regs. 0250-7-9-.01 and is as follows:
The rules in this chapter apply to individuals whom the Department of Children's Services identifies or proposes to identify as a perpetrator of physical, severe, or sexual abuse, as defined in Parts 1, 4, or 6 of Chapter I of Title 37 of the Tennessee Code Annotated. These rules shall further apply only when such identification is released or proposed to be released to: (1) the individual's employer whether the individual is a paid employee or under contract; (2) the licensing authority of the employer or the individual; or (3) any other organization with which the individual is associated as a paid employee or contractor, or volunteer; whether such individual is providing instruction, care, supervision, or treatment (a) in a child welfare agency as defined in T.C.A. § 71-3-501 et seq.; (b) in a public or private school for children; (c) in a residential or institutional child caring organization; (d) through self employment; or (e) in any other organization. Such release shall be for the purposes of protecting children from further abuse and for the purposes directly connected with the administration of T.C.A. §§ 37-1-101 et seq.; 37-1-401 et seq.; 37-1-601 et seq.; 71-3-530.
The next section, 0250-7-9-.02, involves the process for classifying certain reports of child abuse as "validated." This section provides that a report of child abuse may be classified as "validated" if there is substantial and material evidence to indicate that the perpetrator committed physical, severe or child sexual abuse as defined in Tenn. Code Ann. §§ 37-1-102 or 37-1-602. The Regulations then set forth five factors which DCS deems will constitute substantial and material evidence and another three factors which are to be considered only as corroborative evidence. Specifically, the Regulations provide that any one of the following five factors "shall" constitute substantial and material evidence that the abuse has occurred:
(1) Medical and/or psychological information from a licensed physician, medical center, or other treatment professional, that substantiates that child abuse occurred.
(2) An admission by the perpetrator,
(3) The statement of a credible witness or witnesses to the abusive act.
(4) The child victim's statement that the abuse occurred. The following elements are typical of sexually abusive situations, and should be considered in assessing the weight to be given to the child's statement in cases where sexual abuse is alleged:
(a) History of Relationship.
1. Multiple incidents occurring over a period of time. This situation is most common where the alleged perpetrator is a relative, friend, or caretaker of a victim.
2. Progression of physical touching, from activities that appear acceptable at first, but become sexual in nature.
(b) Details of Abuse.
1. Explicit knowledge of sexual activity. The victim relates explicit details of the sexual experience. This is especially relevant where the details are beyond the knowledge typical of a child of the victim's age.
2. Richness of details, such as a location and/or time, even if a specific date is not given, or other details of the environment. For a preschool age child, such detail is not expected. As a child's developmental age increases, more detail is expected.
3. Consistency. If the child is interviewed more than once, the responses and statements are generally consistent from one interview to the next. Parts of the story are corroborated by other circumstances and/or witnesses.
(c) Secrecy. The child indicates that he/she was instructed, asked, and/or threatened to keep the abuse secret.
(d) Coercion. Elements of coercion, persuasion, or threats to get the child to engage in the activity.
(5) Physiological indicators or signs of abuse, including, but not limited to, cuts, bruises, burns, or broken bones.
Tenn. Comp. R. & Regs. 0250-7-9-.02(1) - (5).
When a report of child abuse is "validated" and the alleged perpetrator is employed in one of the categories listed in the section titled Scope of Rules, supra, then the alleged perpetrator is provided notice that his or her employer will be notified that they are a perpetrator in a validated report of physical, severe, or sexual child abuse. The Regulations also provide certain appeal rights to the alleged perpetrator.
In 2002, Petitioner's stepdaughter alleged Petitioner had sexually abused her on four occasions over a two year period. According to Petitioner's stepdaughter's allegations, these four occasions involved Petitioner twice rubbing the outside of his stepdaughter's panties, on one occasion rubbing her buttocks, and on another fondling one of her breasts. Petitioner steadfastly has denied ever sexually abusing his stepdaughter. We will summarized briefly some of the proof regarding whether the alleged abuse actually occurred.
After the allegations were made, a DCS investigator interviewed the stepdaughter (hereafter referred to by her initials, "N.O."), who described each of these four incidents as well as where she and Petitioner were living at the time each abusive act allegedly happened. DCS also interviewed N.O.'s mother, who is Petitioner's wife, and she stated that N.O. earlier had disclosed two of the alleged incidents to her. However, N.O.'s mother did not believe N.O. and attributed the allegations to tension between her, N.O., and Petitioner. Petitioner's brother-in-law stated that, to his knowledge, the relationship between N.O. and Petitioner appeared to be a normal stepparent/stepchild relationship. He went on to add that shortly after N.O. initially made the allegations, he saw her in church and she insisted that the allegations were true.
As a result of the claimed sexual abuse, N.O. was removed from the home and placed in foster care. While in foster care, N.O. informed her foster care mother that Petitioner had abused her sexually, but N.O. gave no details about the abuse. The foster care mother later overheard a telephone conversation between N.O. and her mother. At the beginning of this conversation, N.O. told her mother that the abuse did not happen and she was "going to tell them that it did not happen." According to the foster care mother, N.O.'s mother "did not lead her into that she did it all on her own."
N.O. recanted the allegations of sexual abuse. According to N.O., she and Petitioner are "best friends" and go fishing, watch wrestling, cook together, etc. N.O. now claims that Petitioner never sexually abused her and she lied about the allegations because she was afraid Petitioner would take her mother's affections away from her. N.O. stated she got the idea of making allegations of sexual abuse from a friend and because she had been sexually abused in the past by a stepuncle and one of her mother's previous husbands. N.O. stated that this earlier abuse got her mother's attention. N.O. claimed that she was mad at Petitioner when she made the false allegations because he would not let her boyfriend and another friend into the house while her mother was not present. N.O. stated she decided to tell the truth after attending a church service where the topic of the sermon was lying.
Debbie Ward, a DCS Team Leader, testified that there are five factors to look at when validating a child's statement regarding abuse. These factors are consistency, opportunity for the abuse to have occurred, medical evidence, progression of incidents, and secrecy. According to Ward, N.O.'s statements of abuse met four of these five criteria. Ward further testified that she believed N.O. recanted because N.O.'s mother may have to move out of Tennessee if Petitioner loses his job because of N.O.'s allegations of sexual abuse.
Separate and apart from the present litigation, on August 28, 2002, a dependency and neglect hearing was conducted in the Cumberland County Juvenile Court. After a trial, the Juvenile Court entered an Order on October 2, 2002, which provides, inter alia, as follows:
All parties and the minor child were present and represented by counsel, the Court having taken testimony,...
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