In re Treylynn T.

• Decision Date: 09 September 2020
• Docket Number: No. W2019-01585-COA-R3-JV,W2019-01585-COA-R3-JV
• Parties: IN RE TREYLYNN T. ET AL.
• Court: Tennessee Court of Appeals

IN RE TREYLYNN T. ET AL.

No. W2019-01585-COA-R3-JV

COURT OF APPEALS OF TENNESSEE AT JACKSON

July 14, 2020 Session

September 9, 2020

Appeal from the Circuit Court for Henderson County

No. 19028-1

Roy B. Morgan, Jr., Judge

This is a dependency and neglect case. Appellee Tennessee Department of Children's Services received a referral of possible child abuse. Following Appellee's investigation, the children were placed in foster care. Both parents were arrested on child abuse charges. Thereafter, Appellee initiated a dependency and neglect action in the juvenile court. In her criminal case, Appellant/Mother entered a best interest/Alford plea to the charge of child endangerment. Subsequently, the juvenile court found the children dependent and neglected. On de novo review, the trial court found that: (1) Mother's Alford plea was dispositive of her guilt on the child endangerment charge; (2) Mother committed severe child abuse under Tennessee Code Annotated section 37-1-102 (b)(27)(C);¹ and (3) the children were dependent and neglected. Mother appeals. Discerning no error, we affirm.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN, J., joined. J. STEVEN STAFFORD, P.J., W.S., filed a dissenting opinion.

Samuel W. Hinson, Lexington, Tennessee, for the appellant, Angel T.²

Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

John Andrew Anderson, Lexington, Tennessee, Guardian Ad Litem.³

OPINION

I. Background

Angel T. ("Mother") and Fortrell C. ("Father") are the parents of the minor children, Amelia C. (d.o.b. September 2017) and Treylynn T. (d.o.b. August 2014) (together the "Children").⁴ On November 14, 2017, Mother went to work and left Amelia, who was approximately two months old, in Father's sole care. Father later explained that he placed Amelia "in a bumpie with a propped bottle and walked to the kitchen to check on food." When he returned, Father alleged that Amelia was having difficulty breathing and went limp. Father called 911, and Amelia, who by this time was suffering from seizure-like symptoms, was transported to Vanderbilt Children's Hospital. CT and MRI scans revealed that Amelia had bleeding in her brain,⁵ and she was hospitalized for three days. While Amelia was in the hospital, Appellee Tennessee Department of Children's Services ("DCS") was notified of her condition. Michelle Stevens, the DCS investigator assigned to the case, interviewed Mother concerning Amelia's injuries. Mother explained that although she did not know the cause of Amelia's injuries, she did not believe Father abused the child.

On or about November 21, 2017, Dr. Elizabeth A. Copenhaver, a Vanderbilt CARE Team physician,⁶ completed a medical assessment of Amelia's case. Dr. Copenhaver explained that "Amelia's head imaging [was] concerning for acute bilateral posterial subdural hematomas, acute hematoma layering along the posterior fossa, tentorium and posterior falx as well as subacute hematomas along the frontoparietal convexity." Ultimately, Dr. Copenhaver concluded that "[i]n light of hematomas of various ages and no accidental mechanism of injury for Amelia's brain injuries, I am highly concerned [Amelia's] injuries [were] a result of abusive head trauma . . . ."

On November 28, 2017, both parents were arrested on charges stemming from Amelia's injuries. Mother's indictment charged her with child endangerment, to-wit:

[O]n or about November 17, 2017, in Henderson County, Tennessee, and before the finding of this indictment, did unlawfully, knowingly, and intentionally as a parent of a child under eight (8) years of age, to-wit: AM[ELIA] fail to protect such child from abuse or neglect resulting in physical injury or imminent danger to the child, in violation of T.C.A. §39-15-401 . . . .

As referenced in the indictment, Mother was charged under Tennessee Code Annotated section 39-15-401, which provides:

(c)(1) A parent or custodian of a child eight (8) years of age or less commits child endangerment who knowingly exposes such child to or knowingly fails to protect such child from abuse or neglect resulting in physical injury or imminent danger to the child.

(2) For purposes of this subsection (c):

(A) "Imminent danger" means the existence of any condition or practice that could reasonably be expected to cause death or serious bodily injury;

(B) "Knowingly" means the person knew, or should have known upon a reasonable inquiry, that abuse to or neglect of the child would occur which would result in physical injury to the child. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary parent or legal custodian of a child eight (8) years of age or less would exercise under all the circumstances as viewed from the defendant's standpoint; and

(C) "Parent or custodian" means the biological or adoptive parent or any person who has legal custody of the child.

Tenn. Code Ann. §39-15-401(c)(1)-(2)

Following the parents' arrests, the Henderson County Juvenile Court (the "juvenile court") placed the Children in DCS custody. On December 4, 2017, DCS filed a dependency and neglect petition against both parents in the juvenile court. The hearing on DCS' petition was postponed pending resolution of the parents' criminal charges. As is relevant to this appeal, on July 17, 2018, Mother entered a best-interest/Alford plea to child endangerment, discussed infra. Mother was placed on diversion for eleven months and twenty-nine days.

On January 23, 2019, the juvenile court held an adjudicatory hearing on DCS' petition for dependency and neglect against Mother. By separate orders entered onMarch 19, 2019, the juvenile court found the Children dependent and neglected based on severe child abuse by both Mother and Father. Concerning Mother, the juvenile court found:

The child Amelia [] is a victim of severe abuse by, mother . . . pursuant to T.C.A § 37-1-102 (b)(27)(C) in that the mother failed to protect from the commission of an act prohibited by § 39-15-402.

Mother appealed the juvenile court's ruling to the Henderson County Circuit Court (the "trial court"), which conducted a de novo hearing on August 19, 2019. Trial Exhibit 1 consists of Mother's best interest/Alford plea to child endangerment and the Henderson County Circuit Court's approval of the eleven-month, twenty-nine day diversion. At trial, Mother testified that she completed her diversion requirements prior to the trial court's hearing and that her record was "clear." Likewise, at oral argument before this Court, Mother's attorney stated that Mother had completed the requirements of her diversion and that the child endangerment charge had been expunged from her record. Tennessee Code Annotated section 40-25-315(b) provides, in part, that

[u]pon the dismissal of the person and discharge of the proceedings against the person under subsection [i.e., probation/diversion], the person may apply to the court for an order to expunge from all official records . . . all recordation relating to the person's arrest, indictment or information, trial, finding of guilty and dismissal and discharge pursuant to this section . . . .

However, no such order of expungement was presented in the trial court, and no such order appears in the appellate record.

By order of October 15, 2019, the trial court found the Children to be dependent and neglected. In relevant part, the order provides:

2. There is finding of guilt of the Mother, based upon her best interest plea to child endangerment under T.C.A. § 39-15-401. The Mother made said plea with no promises of the child(ren) being returned to her custody, as made clear by the requirements outlined in the Mother's best interest plea documentation. The conviction for child endangerment includes a "knowingly" element; specifically[,] that the Mother, "knowingly fails to protect such child from abuse or neglect. . . ."

***

4. The Mother knowingly failed to protect the child.

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The Court finds by clear and convincing evidence that the child, Amelia [C.], suffered from abuse and/or neglect and therefore pursuant to T.C.A. § 37-1-129([b])(2) finds that the child is a victim of severe child abuse as defined at T.C.A. § 37-1-102(b)(2[7])(C), perpetrated by the Mother, Angel [T.].

Mother appeals.

II. Issues

As set out in her brief, Mother's raises the following issue for review:

Whether the Circuit Court Henderson County, Tennessee erred in upholding the findings of the Juvenile Court of Henderson County, Tennessee when (1) the state failed to present clear and convincing evidence, (2) it erroneously relied upon [Mother's] best interest plea, and (3) the conditions that may have existed at the time the Dependency and Neglect Petition was filed no longer existed at the time of the de novo hearing.

III. Standard of Review

As very recently explained by this Court:

A child who is suffering from abuse is a dependent and neglected child. See Tenn. Code Ann. § 37-1-102[(b)](1[3])(G). A determination that a child is dependent and neglected must be supported by clear and convincing evidence. See Tenn. Code Ann. § 37-1-129(a)(1) & (c). Severe child abuse in a dependency and neglect proceeding must also be established by clear and convincing evidence. In re S.J., 387 S.W.3d 576, 591 (Tenn. Ct. App. 2012).

The "clear and convincing evidence standard" is more exacting than the "preponderance of the evidence" standard, although it does not demand the certainty required by the "beyond a reasonable doubt" standard. In re C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000). The clear and convincing evidence standard defies precise definition. Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989). Evidence satisfying this high standard produces a firm belief or conviction regarding the

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