In re H.L.F.

• Decision Date: 04 February 2009
• Citation: 297 S.W.3d 223
• Parties: In the Matter of H.L.F. et al.
• Court: Tennessee Court of Appeals

297 S.W.3d 223

In the Matter of H.L.F. et al.

Court of Appeals of Tennessee, Eastern Section, at Nashville.

January 9, 2009 Session.

February 4, 2009.

Permission to Appeal Denied by Supreme Court June 15, 2009.

Published Pursuant to Tenn. R. S. Ct. Rule 4(D).

James Reed Brown, Byrdstown, Tennessee, for the appellant, T.W.

Onnie Winebarger, Byrdstown, Tennessee, for the appellant, J. F.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Joshua D. Baker, Assistant Attorney General, for the State of Tennessee, Department of Children's Services.

Amy V. Hollars, Livingston, Tennessee, Guardian Ad Litem.

OPINION

FRANK G. CLEMENT, JR., J., delivered the opinion of the court, in which ANDY D. BENNETT and RICHARD H. DINKINS, JJ., joined.

The unmarried parents of four minor children appeal the circuit court's finding that their four children are dependent and neglected and that both parents committed severe abuse. The circuit court found the four children dependent and neglected pursuant to Tenn.Code Ann. § 37-1-102(b)(12)(B), (F), and (G), and found that both parents perpetrated severe child abuse against their children due to the father's sexual abuse of three minor girls in the home, including aggravated rape and aggravated sexual exploitation of their twelve-year-old daughter, and the mother's knowing failure to protect her children. The circuit court also found that aggravated circumstances existed and, therefore, pursuant to Tenn.Code Ann. § 37-1-166(g)(4)(A) the Department of Children's Services was no longer required to make reasonable efforts to assist the parents in obtaining services so they could be reunited with their children. Finding no error and that the evidence in the record is clear and convincing, we affirm.

J.F. (Father) and T.W. (Mother), the defendants/appellants, are the unmarried parents of four minor children, a daughter age 12 (whom we shall identify as Heather),¹ and three boys, ages 10, 8 and 6, respectively.

The matters at issue came to light on February 23, 2006, when the Sheriff's Department of Pickett County received a referral alleging Father had raped a 9-year-old girl (whom we shall identify as "Ally"), who was a friend of the parent's 12-year-old daughter, Heather. After investigations and a doctor's examination confirmed sexual abuse of Heather and Ally, the Department of Children's Services (DCS) filed this Dependent and Neglect action on April 13, 2006, against both parents. The petition alleged that the children were dependent and neglected because of the sexual abuse Father had perpetrated upon Ally and Heather, and because Mother had failed to protect the children from Father's sexual abuse. Two days after the petition was filed, a second referral was received in which it was alleged that Father sexually abused another child (whom we shall identify as "Amy"), who frequently visited Heather in the defendants' home. After the second referral was received, a search warrant was obtained and the resulting search discovered explicit sexual material and internet photos, etc., in the defendants' home. As the investigation ensued, three of the minors stated that Father had sexually abused them, and two other minors stated they had seen him rape or sexually abuse a child.

On March 27, 2007, the Juvenile Court of Pickett County adjudicated the children dependent and neglected and found that Father and Mother had subjected the children to severe abuse. The parents appealed the matter to the circuit court. The case was tried in the Circuit Court of Pickett County on August 20 and 21, 2007. In a thorough twenty-one page Findings of Fact and Conclusions of Law For Circuit Court Appeal of Adjudicatory and Dispositional Hearing Order, the circuit court adjudicated the children dependent and neglected and found that Father and Mother had subjected the children to severe abuse. The circuit court also made numerous and specific findings of fact, of which the following are the most relevant to the issues presented:

1. Tennessee DCS received a referral on February 25, 2006, stating that [Ally], then age nine, had been sexually abused by [Father] and that [Ally] had witnessed [Father] also sexually abuse his own daughter, [Heather], then age twelve.

2. On April 5, 2006, DCS received a referral that [Father] has sexually abused [Amy].

3. DCS has indicated [Father] for the sexual abuse of [Ally], [Amy] and [Heather] and has indicated [the parents' three minor sons] as being at substantial risk of harm.

4. [Ally] was examined at Wayne County Hospital in Kentucky on February 25, 2006. Dr. Walter Koscienski testified by deposition that when he interviewed [Ally] she told him that when she went to [Father's] house, [Father] would take all their clothes off and touch them, meaning herself and [Heather]. When asked where he touched them, [Ally] pointed to her nipples, vaginal area and bottom. [Ally] told him that [Father] touched her privates and inside her bottom with his penis. [Ally] denied any oral contact by [Father]. [Ally] also stated that she saw [Father] rubbing his penis and "water" coming out. Dr. Koscienski testified that he received specialized training in pediatric examinations of children who have been sexually abused from Dr. Martin Finkle, who has published multiple times on this subject. During Dr. Koscienski's examination of [Ally's] genitals, he found that her labia majora was swollen and inflamed. The hymen was missing. He opined that the absence of the hymen indicated the child had been penetrated multiple times, resulting in the hymen being rubbed away. He did not find any of the other abnormalities in [Ally's] genitalia that would be associated with congenital absence of the hymen and therefore opined that the probability of the absence of [Ally's] hymen being congenital was zero. Dr. Koscienski also opined that the absence of the hymen could not be attributed to accidental means.

5. Sue Ross, RN, MSN, who is a nurse practitioner with Our Kids Center, testified via her previously recorded testimony in Juvenile Court regarding her medical examination of [Heather] on August 23, 2006 and testified extensively regarding medical findings in children who have been sexually abused. Ms. Ross has more than sixteen years of experience performing pediatric sex abuse medical examinations at Our Kids Center and is an Associate Professor in the Department of Pediatrics at Vanderbilt University School of Medicine. Ms. Ross' examination of [Heather] revealed no medical evidence that is definitive of sexual abuse. She found a cleft in the hymen at the 7:00 o'clock position, that could be the result of penetrating trauma, but because the cleft did not go all the way to the base of the hymen, it is not definitive of sexual abuse. Ms. Ross explained that because children usually are not experienced in sexual intercourse, they do not know what full penile penetration feels like. Children often believe they have been penetrated when the exterior genitalia has been penetrated or they feel pressure on their genitalia. Ms. Ross explained that masturbation, horseback riding and riding a bike do not cause injury to the hymen. Accidental injury that caused injury to the hymen would require significant injury to the external genitalia and laceration or tearing of the external genitalia going through to the hymen. She testified that the use of tampons and even the use of a speculum for a medical examination would usually not damage the hymen. She also testified that penetration by a child during masturbation was highly unlikely. Ms. Ross testified that many forms of child sexual abuse, including oral genital contact, touching or rubbing the genitalia, either outside or inside the external genitalia, without penetration beyond the hymen into the vaginal vault, with either the hand or penis, would be expected to leave no medical evidence of sexual abuse. Digital penetration is also likely to leave no medical; [sic] evidence. Ms. Ross' experience is that children's response to sexual abuse is very variable. She stated that no assumptions can be made regarding whether the sexual abuse would have been painful, because you can not [sic] make assumption from the statements of children as to [how] far they were penetrated.

6. Lisa Dupree, MA, LCSW, testified via her previously recorded testimony in Juvenile Court regarding her interview of [Heather] on August 23, 2006. Ms. Dupree is a Licensed Clinical Social Worker, who has worked at Our Kids Center for fifteen years. She has assessed between six and seven thousand children who are alleged to be victims of sexual abuse. [Heather] did not want to talk about the allegations of sexual abuse, but did tell her that she would rather stay in the foster care than go home. Ms. Dupree testified that it is atypical for children to scream while they are being sexually abused. Based upon her experience, while it is not the most common scenario for a sex offender to abuse one victim in front of another victim, it is not atypical. It is highly unusual for children to insert objects into their vagina when masturbating.

7. Ginny Douglas, Director of Forensic Interviewing for the Children's Advocacy Center of the Cumberlands, testified regarding her interviews of [the parents' three minor sons].... Ms. Douglas has been trained as a forensic interviewer since 2004. During his interview [the parents' son] who was six years old at the time of the interview, stated that his Daddy touched [Heather] on her pee pee with his hand. [He] stated that [Heather] had her clothes off. [He] told Ms. Douglas that he would rather live with his foster mother ... than his mother, ... Ms. Douglas asked [the parent's six-year-old son] if he knew what sex was and he said yes and pointed to the penis of the anatomical drawing of a boy. When asked if he had ever seen anyone have sex, he indicated yes. [He] also said that his daddy watched movies with p...