                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  October 25, 2016 Session

                               IN RE TAMERA W., ET AL.

                    Appeal from the Circuit Court for Shelby County
                      No. CT-001361-14 Gina C. Higgins, Judge
                       ___________________________________

               No. W2015-02463-COA-R3-CV – Filed November 10, 2016
                      ___________________________________


Mother and Father appeal from the trial court‘s finding that clear and convincing
evidence exists to establish that the children at issue are dependent and neglected and the
victims of severe abuse at both parents‘ hands. Discerning no error, we affirm.


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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and BRANDON O. GIBSON, JJ., joined.

Theresa D. Childress, Memphis, Tennessee, for the appellant, Lawanda K.

Dennis J. Sossaman, Memphis, Tennessee, for the appellant, Larry K.

Elizabeth W. Fyke, Memphis, Tennessee, Guardian ad Litem.1

Herbert H. Slatery, III, Attorney General and Reporter; M. Cameron Himes, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children’s
Services.


                                           OPINION

                                          Background

       1
          Attorney Fyke did not file a brief in this matter; instead, on October 24, 2016, one day
prior to oral argument in this cause, Attorney Fyke filed a notice that she was joining in the brief
of the Tennessee Department of Children‘s Services. Attorney Fyke also participated in oral
argument.
        On October 26, 2012, Petitioner/Appellee the Tennessee Department of Children‘s
Services (―DCS‖) filed a petition to adjudicate seven children dependent and neglected:
Tamera W., born in 1999, Akila E.W., born in 2001, Lajerrica S.W., born in 2002,
Quentell D.W., born in 2003, Jereka S.W., born in 2005, Alaysha M.W., born in 2006,
and Lariyana T.K., born in 2011.2 The petition alleged that on October 18, 2012, DCS
received a referral regarding physical abuse of Alaysha by her mother,
Respondent/Appellant Lawanda K. (―Mother‖). The investigation revealed that three of
the children had bruises, lacerations, and red marks on their backs, legs, and buttocks.
The children informed the DCS investigator that the marks were the result of a
punishment the night before, in which Mother whipped each child with an extension
cord, while the children‘s hands, mouths, and eyes were covered in duct tape. The
petition alleged that the children were the victims of severe abuse by Mother. In addition,
the petition alleged that Mother‘s husband and father of three of the children,
Respondent/Appellant Larry K. (―Father‖), also committed severe abuse by knowingly
failing to protect the children.3

       A juvenile magistrate held a preliminary hearing on the petition on October 30,
2012. Father was present for the hearing; Mother was not present for the hearing because
she was incarcerated. On November 8, 2012, a juvenile magistrate entered an order
containing its findings and recommendations. Therein, the juvenile magistrate noted that
Mother and Father waived their right to a preliminary hearing, that DCS was ―reasonable
not to make efforts to maintain the children in the home,‖ and that there was no less
drastic alternative than placing the children in DCS custody. The children were therefore
placed in DCS custody, and Mother and Father were granted supervised visitation. DCS
was ordered to provide anger management and parenting classes to Mother and Father,
which they were ordered to complete.

       During the pendency of the proceedings in the juvenile court, the juvenile court
entered several permanency plans concerning the children; eventually, the goal of the
permanency plans was changed from return to parent to adoption.

        In the meantime, on September 13, 2013, a juvenile magistrate held a hearing on
DCS‘s dependency and neglect petition. The juvenile magistrate issued a written ruling
finding that the petition be sustained, that the children be found dependent and neglected,
and that the children were the victims of severe abuse. Given the allegations of physical
abuse, the magistrate further found that it was reasonable for DCS not to make efforts
toward reunification. The magistrate‘s findings and recommendations were adopted,
ratified, and confirmed as the order of the juvenile court on the same day as the hearing.
        2
           This Court has a policy of protecting the identity of children in dependency and neglect cases by
initializing their last names and those of their parents.
        3
          Father is the biological parent of Quentell, Alaysha, and Lariyana. The biological fathers of the
other children are not at issue in this appeal.
                                                   -2-
A written order was thereafter entered sustaining the dependency and neglect petition on
November 5, 2013.

       Mother and Father filed petitions for rehearing before the juvenile court judge. A
hearing was held on March 10, 2014, Substitute Judge Dan H. Michael presiding. The
juvenile court entered an order on March 24, 2014: (1) dismissing Father‘s petition for re-
hearing because he did not appear for court; (2) allowing Mother‘s request for rehearing;
and (3) again sustaining DCS‘s dependency and neglect petition. In its order, the juvenile
court found clear and convincing evidence that the children were dependent and
neglected based upon the children‘s interviews with DCS investigator Tanisha Harper.
According to the juvenile court, each of the children separately recounted similar
allegations of physical abuse at the hands of Mother. The juvenile court therefore found
that Mother had perpetrated severe abuse against four of the children, Alaysha, Quentell,
Jereka, and Lajerrica. As a result of what the juvenile court deemed to be the ―torture‖ of
the children, the juvenile court ordered that the children remain in DCS custody, that
DCS was relieved of making reasonable efforts toward reunification of the family, and
that Mother and Father would have no contact of any kind with the children.

         Mother and Father thereafter timely appealed to the Shelby County Circuit Court
(―trial court‖). The trial court heard the de novo appeal on March 10, March 11, and July
8, 2015. Ms. Harper testified about her interviews with Alaysha, Quentell, Jereka,
Lajerrica, Tamera, and Akila. The interviews took place first individually and then as a
group. During these interviews, several of the children stated that they were whipped on
October 17, 2012, or had been in the past. According to the children, Mother would make
the children squat with their faces against the wall and hands above their heads,
sometimes holding this position for hours while holding books over their head, lead the
children one by one into her bedroom, make them remove their clothes, duct tape their
mouth, wrist, and eyes, and then proceed to whip them. The children explained that
Mother initially used a belt for this ―discipline‖ but that she had switched to an extension
cord because the belt was not painful enough. One child explained that Mother made
abuse an ―everyday‖ occurrence and that if one child got in trouble, Mother would whip
all of them. Other forms of punishment included making six children split a can of carrots
and removing their beds so that they would have to sleep on the cold floor. Ms. Harper
took photographs of the injuries to Alaysha, Quentell, Jereka, and Lajerrica, which
showed extensive bruising, red marks, scratches, and lacerations. For example, a
photograph of Alaysha‘s back showed two red marks consistent with the size of an
electrical cord covering nearly the length of her back. Likewise, photographs of Quentell
showed multiple lacerations and scratches on his backside and legs. According to Ms.
Harper, while not all of the children had fresh marks of abuse, some exhibited older
marks suggesting that they had been ―whipped . . . with extension cords in the past.‖

       The children informed Ms. Harper that Father was aware of the abuse by Mother
because he was in the home when the abuse occurred. Father would also sometimes
                                        -3-
participate in the discipline, but the children indicated that he only ever used a belt, never
an extension cord. The children stated that sometimes during Mother‘s ―discipline‖ of the
children, Father would leave the house to go out to his car and smoke. According to the
children, Father once told Mother that she should not whip the children in such a manner
but that Mother responded that she could discipline the children as she saw fit.

        Ms. Harper finally testified that the family had been the center of eight prior DCS
investigations, the majority of which concerned allegations of physical abuse. At one
point, the children were placed into foster care for a year while Mother was required to
attend counseling. According to Ms. Harper, as a result of these investigations, Mother
was informed as to what DCS considered appropriate discipline of the children, and
Mother indicated to DCS that she was aware of what discipline was appropriate. Ms.
Harper finally testified that based upon the injuries to the children, in the estimation of
DCS, Mother‘s actions in whipping the children in this case constituted severe abuse and
neglect. Other than Lariyana, the children were also called into court to give their
statements concerning the abuse and their desired outcomes for the case.4

        DCS social worker Letina Pruitt testified about her interactions with the family
after the children were removed from Mother‘s custody. According to Ms. Pruitt, while
the children still have some emotional and behavioral issues, they have generally
improved since their removal from Mother‘s and Father‘s custody. Ms. Pruitt testified
that several of the children are medicated for attention deficit and other disorders. In
addition, Ms. Pruitt testified that Quentell was required to be hospitalized for mental
health issues for a period of time but that he appears to improving now that he is
medicated. Ms. Pruitt stated that Mother had initially complied with the permanency
plans put in place by the juvenile court but that Mother refused to comply after the goal
of the permanency plans was changed to adoption. Ms. Pruitt admitted, however, that
Mother had completed a mental health assessment and an anger management program, as
required by the permanency plans.

       Mother admitted to whipping the children with a belt and making them squat in
the hallway as a form of punishment. Still, Mother denied ever using an extension cord
or duct tape on the children, as well as forcing the children to sleep on the floor or
denying them food. Mother contended that the children lied about the abuse because they
are manipulative and have a history of lying and stealing. Mother admitted, however, that
it was her ―discipline‖ that caused the marks depicted in the photographs taken by Ms.
Harper in October 2012. According to Mother, she was required to discipline the children
       4
           The children, however, were not sworn in as witnesses. This Court has repeatedly held,
however, that statements made in open court are not evidence unless given by a witness who has taken an
oath or affirmation before testifying. See, e.g., Dayhoff v. Cathey, No. W2011-02498-COA-R3-JV, 2012
WL 5378090, at *3 (Tenn. Ct. App. Nov. 1, 2012); In re D.M.H., No. W2006-00270-COA-R3-JV, 2006
WL 3216306, at *7 (Tenn. Ct. App. Nov. 8, 2006). The rule is equally applicable to both children and
adults who testify. Accordingly, we will not consider the children‘s statements in this case.
                                                 -4-
due to their many behavior problems. Despite this contention, Mother denied that any of
the children required medication because the ―children never displayed that type of
behavior at home.‖ Instead, Mother contended that the children‘s behavioral issues after
being taken into DCS custody resulted solely from their need to return to her care.
Mother admitted, however, that the ―discipline‖ she administered to the children in
October 2012 was not appropriate and testified that she would no longer physically
discipline the children should they be returned to her home. According to Mother, she
had learned to discipline the children in other ways, such as removing video game
privileges. As a result of the alleged abuse, Mother testified that she pleaded guilty to
four counts of aggravated child assault, for which she had received judicial diversion.5

       Mother also stated her belief that she had substantially complied with the
requirements under the various permanency plans put in place by the juvenile court,
including the completion of psychological evaluations on May 17, 2013, and May 1,
2015, with Dr. Kenneth Jones, a licensed clinical psychologist. Both Dr. Jones‘s
deposition and the reports from the psychological evaluations were submitted into
evidence. According to the 2013 evaluation report, Mother has a tendency to repress or
deny problems. As such, the report noted that should DCS determine that reunification
was possible, Dr. Jones strongly recommended ongoing family therapy, individual
treatment, and medication. The report finally noted that Mother‘s issues ―make it very
difficult for her to act efficiently as a mother of minor children.‖ When Mother was
reevaluated in 2015, however, Mother indicated that she was not pursuing any individual
counseling. In addition, Dr. Jones noted ―noticeable inconsistencies‖ between Mother‘s
reports of her participation in services and the reports from DCS and Mother‘s former
clinical therapist. Accordingly, Dr. Jones made the following recommendations:

        1.      Given the severity of the allegations, including significant physical
                and emotional abuse of the minor children, and the apparent
                disconnect between the comments of the family service worker‘s
                notes compared to those of [Mother‘s] clinical therapist, it is
                strongly recommended that additional investigation of the historical
                accuracy of the provided information be determined prior to the
                reunifying of the family unit.
        2.      Based on [Mother‘s] report of her lack of psychological therapy in
                the wake of the allegations, and a reported non-involvement in
                accountability or counseling that could be producing improvement in
                [Mother‘s] overall ability to deal with stress appropriately, and
                develop effective communication and parenting skills, it is strongly
                recommended that individual counseling commence and continue
                immediately. It is also recommended that, when [Mother‘s]

        5
          At oral argument, counsel for Mother indicated that she was still on probation under the judicial
diversion.
                                                   -5-
             counselor deems her ready, family counseling sessions begin prior to
             reunification, so that communication and effective problem solving
             skills can be learned, practiced, and established.

Finally, in accordance with his evaluation of Father, discussed in detail infra, Dr. Jones
recommended that the children not be returned to the home so long as Father is present
until Father had completed six months of successful treatment.

       Father contended that he only saw Mother discipline the children by making them
squat and that he never whipped them. Father also testified he never saw Mother
discipline the children because she would take them into a room and he would usually be
outside. According to Father, he was diagnosed with bipolar disorder and schizophrenia
in 2008. At the time of trial, Father revealed that he had not taken his medication as
prescribed for several days and that he did not complete parenting classes or a mental
health assessment because he did not understand why he had to do those things.

       Like Mother, Father completed a psychological evaluation with Dr. Jones, on May
8, 2015, and the report from the psychological evaluation was submitted into evidence.
During the evaluation, Father admitted that after he was allegedly diagnosed with bipolar
disorder and schizophrenia, he failed to take his prescribed medication or obtain required
follow-up treatment. In his report, Dr. Jones opined that Father‘s past diagnoses were
possibly inaccurate because Father was malingering or exaggerating his symptoms. As
such, Dr. Jones recommended that Father be re-evaluated. Dr. Jones did find, however,
that Father‘s intellectual functioning was in the borderline range but that he could ―fully
comprehend and understand‖ the purpose of the psychological evaluation. In his
deposition, Dr. Jones testified that when asked about the physical abuse of the children,
Father indicated that ―he never felt like the need to intervene was there.‖ Instead, Father
would ―disengage[e]‖ or ―leave the house.‖ Based upon the totality of the evidence, Dr.
Jones recommended that the children not be returned to Father until he had successfully
participated in a treatment plan and parenting training for a period of six months.

       On November 9, 2015, the trial court granted the petition to adjudicate all of the
children dependent and neglected. The trial court also found that four of the children,
Alaysha, Quentell, Jereka, and Lajerrica, were the victims of severe abuse at both
Mother‘s and Father‘s hands.

                                    Issues Presented

       Mother raises two issues, which are taken and slightly restated, from Mother‘s
appellate brief:



                                           -6-
       1. Whether the court in the dependency and neglect case erred by not
          allowing the children to visit or reunite with Mother through therapy
          and reasonable efforts.
       2. Whether the juvenile court erred by ignoring Mother‘s substantial
          compliance with the permanency plan.

In addition, Mother questions the appropriate standard for appellate review in this case.
In contrast, Father raises only one issue; whether the trial court erred in finding clear and
convincing evidence that his children were dependent and neglected.

                                         Analysis

As recently explained by the Tennessee Supreme Court:

              A parent‘s right to the care and custody of her child is among
              the oldest of the judicially recognized fundamental liberty
              interests protected by the Due Process Clauses of the federal
              and state constitutions. Troxel v. Granville, 530 U.S. 57, 65
              (2000); Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re
              Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re
              Adoption of Female Child, 896 S.W.2d 546, 547–48 (Tenn.
              1995); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn.
              1993). But parental rights, although fundamental and
              constitutionally protected, are not absolute. In re Angela E.,
              303 S.W.3d at 250. ―‗[T]he [S]tate as parens patriae has a
              special duty to protect minors . . . .‘ Tennessee law, thus,
              upholds the [S]tate‘s authority as parens patriae when
              interference with parenting is necessary to prevent serious
              harm to a child.‖ Hawk, 855 S.W.2d at 580 (quoting In re
              Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see
              also Santosky v. Kramer, 455 U.S. 745, 747 (1982); In re
              Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d 507, 522–23 (Tenn. 2016) (footnote omitted).

       Here, both parents argue that the trial court erred in its finding of dependency and
neglect and severe abuse as to the children at issue. The Tennessee General Assembly has
described by statute what constitutes dependency and neglect, the procedures and steps to
be taken in making this determination, and the jurisdiction of the juvenile courts. As is
relevant to the instant appeal, a ―dependent and neglected child‖ is a child:



                                            -7-
         (F) Who is in such condition of want or suffering or is under such
        improper guardianship or control as to injure or endanger the morals or
        health of such child or others;
        (G) Who is suffering from abuse or neglect; . . . .

Tenn. Code Ann. § 37-1-102(b)(12) (outlining other definitions not at issue in this case).
In turn, ―abuse‖ is defined as:

        [A] person under the age of eighteen (18) [who] is suffering from, has
        sustained, or may be in immediate danger of suffering from or sustaining a
        wound, injury, disability or physical or mental condition caused by
        brutality, neglect or other actions or inactions of a parent, relative, guardian
        or caretaker[.]

Id. § 37-1-102(b)(1). On the other hand, ―severe child abuse‖ is defined, in relevant part,
as:

        (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;
               (ii) ―Serious bodily injury‖ shall have the same meaning given in §
               39-15-402(d).6

Id. § 37-1-102(b)(22) (outlining other definitions not at issue in this case).

        The General Assembly has vested juvenile courts with ―exclusive original
jurisdiction‖ to hear allegations that a child is dependent and neglected as defined above.
Id. § 37-1-103(a)(1). The statutes governing dependent and neglect proceedings require,
in effect, a two-step analysis. First, under Tennessee Code Annotated section 37-1-129,
the juvenile court is required to hold a hearing and to make findings as to whether a child
is dependent and neglected. If the juvenile court finds the child to be dependent and
neglected, by clear and convincing evidence, then ―a dispositional hearing shall be held.‖
Id. § 37-1-129(b)(2). In making a disposition, the court must determine the disposition
―best suited to the protection and physical, mental and moral welfare of the child.‖ Id. §
37-1-130(a). These dispositions can include remaining in the home or removal from the
home in appropriate circumstances. See State v. Adams, 24 S.W.3d 289, 296 (Tenn.
2000) (quoting Tenn. Code Ann. § 37-1-130(a)) (noting that ―juvenile courts are vested
        6
           Section 39-15-402(d) defines ―serious bodily injury‖ as including, but 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.‖
                                                  -8-
with the power to transfer temporary custody of depend[e]nt and neglected children to
other persons for the ‗protection and physical, mental and moral welfare of the child‘‖);
Doe v. Norris, 751 S.W.2d 834, 836 (Tenn. 1988) (citing T.C.A. § 37-1-130(a)) (―The
[juvenile] court may allow the child to remain with his parents . . . under court
supervision; or, . . ., the court may remove the child from his parents . . . and place the
child temporarily in the custody of the State Department of Human Services or any other
agency authorized by law to care for the child.‖).

                                                     I.

        Mother first argues that because of the implications of the trial court‘s finding of
dependency and neglect and severe abuse, ―the review of the Dependency and Neglect
case should be viewed under the same appellate standard as a [t]ermination of [p]arental
[r]ight [case].‖ We are somewhat perplexed by Mother‘s argument. Under Title 37,
Chapter 1, as it existed at the time of the trial in this cause, DCS was required to prove
both the fact that a child is dependent and neglected and the fact that a parent has
engaged in severe child abuse by clear and convincing evidence. Tenn. Code Ann. § 37-
1-129(c) (2015) (―If the court finds from clear and convincing evidence that the child is
dependent, neglected or unruly, the court shall proceed immediately or at a postponed
hearing to make a proper disposition of the case.‖);7 Tenn. Dep’t of Children’s Servs. v.
M.S., No. M2003-01670-COA-R3-CV, 2005 WL 549141, at *10 (Tenn. Ct. App. Mar. 8,
2005), perm. app. denied (Tenn. Aug. 29, 2005) (holding that, despite the lack of a
statutory requirement that severe child abuse be shown by clear and convincing evidence,
the clear and convincing standard must be applied due to the consequences of such a
finding). This is the same standard that is applicable with regard to the required elements
in a termination of parental rights proceedings. See Tenn. Code Ann. § 36-1-113 (c)
(requiring clear and convincing evidence of a ground for termination); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002) (―To terminate parental rights, a court must determine
that clear and convincing evidence proves not only that statutory grounds exist but also
that termination is in the child‘s best interest.‖).

        7
           In July 2016, Tennessee Code Annotated section 37-1-129 was amended by the Tennessee
General Assembly. See 2016 Tenn. Laws Pub. Ch. 600 (S.B. 2574), eff. July 1, 2016. Among the changes
to the statute, the language of section 37-1-129 requiring a finding of dependency and neglect be
supported by clear and convincing evidence was removed. See id. Neither party in this case argues: (1)
that the new version of the statute abrogates the long-held principle that dependency and neglect findings
be supported by clear and convincing evidence; or (2) that the new version of the statute should apply in
this case. Indeed, from our review, it appears that this Court has continued to apply the earlier version of
the statute in cases decided after the amendment but which were initiated and tried prior to the
amendment. See, e.g., In re: M.D., No. M2015-01023-COA-R-3-JV, 2016 WL 5723954, at *3 (Tenn. Ct.
App. Sept. 30, 2016) (applying the earlier version of the statute despite the fact that the case was decided
after the amendment); In re Damian M., No. E2015-02353-COA-R3-JV, 2016 WL 5928981, at *2
(Tenn. Ct. App. Sept. 30, 2016) (same); In re Samuel D., No. E2015-01449-COA-R3-JV, 2016 WL
5210706, at *3 (Tenn. Ct. App. Sept. 19, 2016) (same). Accordingly, we likewise apply the earlier version
of section 37-1-129 in this case.
                                                   -9-
       In addition, we review the trial court‘s ultimate findings of dependency and
neglect or severe child abuse de novo with no presumption of correctness. See In re
Damian M., No. E2015-02353-COA-R3-JV, 2016 WL 5928981, at *2 (Tenn. Ct. App.
Sept. 30, 2016). Similarly, the question of whether a ground for termination has been
established or whether termination is in a child‘s best interest is likewise reviewed de
novo with no presumption of correctness. See In re Adoption of A.M.H., 215 S .W.3d
793, 810 (Tenn. 2007) (holding, in a termination of parental rights case, that ―[a]s a
question of law, the trial court‘s ruling that the facts of this case sufficiently support the
termination ground of willful abandonment are reviewed de novo with no presumption of
correctness‖). Accordingly, there appears to be little distinction between either the
quantum of proof required under the version of the statute implicated in this case or the
appropriate standard for this Court‘s review, regardless of whether the issue is
dependency and neglect and severe abuse or termination of parental rights.

       Further elucidation of the standard at issue in this case, however, may be helpful.
We begin first with the quantum of evidence required to meet the clear and convincing
standard. 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) (citing Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.3 (Tenn. 1992)). The evidence should produce a firm belief or
conviction as to the truth of the allegations sought to be established. In re M.L.P., 228
S.W.3d 139, 143 (Tenn. Ct. App. 2007). ―In contrast to the preponderance of the
evidence standard, clear and convincing evidence should demonstrate that the truth of the
facts asserted is ‗highly probable‘ as opposed to merely ‗more probable‘ than not.‖ In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005) (quoting In re C.W.W., 37 S.W.3d
467, 474 (Tenn. Ct. App. 2000)).

       In dependency and neglect cases, the General Assembly has directed that any
appeal from the juvenile court is to be heard by the circuit court. The appeal from
juvenile court to circuit court in a dependency and neglect case is not the same as this
Court‘s review of trial court decisions as set out in the Tennessee Rules of Appellate
Procedure. That is because, 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.‖ Kissick v. Kallaher, No.
W2004-02983-COA-R3-CV, 2006 WL 1350999, at *3 (Tenn. Ct. App. May 18, 2006).
Consequently, the circuit court is not ―reviewing‖ the juvenile court‘s decision; instead, it
is conducting a new proceeding as though the petition was originally filed in circuit court.

       As previously discussed, whether the ultimate issues of dependency and neglect or
severe child abuse have been established by clear and convincing evidence are questions
of law, which we review de novo with no presumption of correctness. See In re S.J., 387
S.W.3d 576, 588 (Tenn. Ct. App. 2012) (quoting In re Samaria S., 347 S.W.3d 188, 200
                                         - 10 -
(Tenn. Ct. App. 2011)) (―Whether the combined weight of the facts, either as found by
the trial court or supported by a preponderance of the evidence, establish clearly and
convincingly that the parent committed severe child abuse is a question of law, subject to
de novo review with no presumption of correctness.‖). This Court reviews the 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.‖ 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. See 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. 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 at 808–09. However, the
trial court‘s conclusions of law concerning the ultimate issues are reviewed de novo
without a presumption of correctness. S. Constructors, Inc. v. Loudon Cnty. Board of
Educ., 58 S.W.3d 706, 710 (Tenn. 2001). Therefore, this Court will review the 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;
however, we will review those conclusions of law, i.e., that the parents engaged in severe
child abuse and that the children are dependent and neglected, de novo with no
presumption of correctness.

       Mother also appears to argue that in order to find the children dependent and
neglected and the victims of severe abuse, DCS was required to prove by clear and
convincing evidence a ground for termination of her parental rights under Tennessee
Code Annotated section 36-1-113(g), and that termination is in the children‘s best
interests. Respectfully, we cannot agree. First, we note that nothing in the definition of a
dependent and neglected child requires that a ground for termination of Mother‘s parental
rights has been established by appropriate proof. See generally Tenn. Code Ann. § 37-1-
102(b)(12). The same is true of the definition of severe abuse. See generally id. § 37-1-
102(b)(22). Indeed, Mother cites no cases, nor has our research revealed any, in which
Tennessee courts have held that a ground for termination or a best interest determination
must be made in order to adjudicate a child dependent and neglected or the victim of
severe abuse. See In re Jimmy B., No. E2015-02070-COA-R3-PT, 2016 WL 2859180,
at *6 (Tenn. Ct. App. May 11, 2016) (noting that the dependency and neglect proceeding
and termination of parental rights proceeding are ―separate proceeding[s]‖).

                                            - 11 -
       By the same token, Mother‘s argument that the trial court erred by ignoring
Mother‘s substantial compliance with the permanency plan is also unavailing. Again,
nothing in either the definition of a dependent and neglected child or severe abuse
requires that the trial court determine whether the parent has complied with an applicable
permanency plan. Mother also cites no law to support her proposition that the trial court‘s
failure to make such a finding is fatal to the trial court‘s findings of dependency and
neglect and severe abuse. While Mother‘s substantial compliance with the applicable
permanency plans may be relevant in a termination of parental rights proceeding, see
Tenn. Code Ann. § 36-1-113(i) (outlining the factors the court should consider in
determining whether termination is in a child‘s best interest, which, among other things,
includes whether the parent has made ―lasting adjustment after reasonable efforts by
available social services agencies‖), this fact alone does not prevent the trial court from
finding the children dependent and neglected or to be the victims of severe abuse.

                                            II.

       Father argues that his children were not dependent and neglected. We note that
although Mother asserts that the trial court erred ―in the dependency and neglect case‖ by
not allowing visitation, Mother does not argue that the children were not dependent and
neglected. As this Court has previously held, however, a finding of dependency and
neglect is not particular to one parent or the other but simply questions the status of the
children. See In re Daymien T., No. E2015-02527-COA-R3-PT, 2016 WL 4060267, at
*1 (Tenn. Ct. App. July 27, 2016), perm. app. denied (Tenn. 2016) (―Nothing in these
provisions specifically requires that a dependency and neglect finding must be made
against or ‗as regards‘ to a specific parent.‖). As such, despite Mother‘s failure to brief
this argument, we will consider whether the trial court correctly found clear and
convincing evidence that all of the children were dependent and neglected.

       Here, the trial court specifically found that the children were dependent and
neglected in that they were in a ―condition of want or suffering or is under such improper
guardianship or control as to injure or endanger the morals or health of such child or
others‖ and that they had suffered from or were in immediate danger of suffering from ―a
wound, injury, disability or physical or mental condition caused by brutality, neglect or
other actions or inactions of a parent[.]‖ See Tenn. Code Ann. § 37-1-102(b)(1), (12)(F).
From our review of the record, the evidence does not preponderate against the trial
court‘s finding that all of the children were dependent and neglected. The record contains
substantial evidence that all of the children were the victims of excessive discipline. This
abuse included beating the children with an extension cord, making the children squat for
hours, forcing the children to sleep on the floor despite the fact that a bed was available,
duct-taping the children‘s hands, feet, mouths, and eyes, and feeding six children only
one can of vegetables. Although Mother and Father denied the abuse, the children all
generally recounted the same types of abuse to the DCS worker. Additionally, at the time
the children were taken into custody, four of the children, Alaysha, Quentell, Jereka, and
                                            - 12 -
Lajerrica, had visible wounds on their backs, legs, and buttocks, from the ―discipline‖
that they received. Although the remaining children interviewed by Ms. Harper did not
have open wounds, Mr. Harper testified that the bruises and healing wounds still
lingering on their bodies nevertheless indicated evidence of prior abuse. Furthermore,
Mother admitted that the discipline she administered to the children in October 2012 was
not appropriate. The record also shows that, in addition to this case, the family had been
the center of eight prior DCS investigations, most of which concerned allegations of
physical abuse. From our research, trial courts have often found that the use of excessive
discipline consistent with this case was sufficient to find children dependent and
neglected. In re Carrington H., 483 S.W.3d 507, 514 (Tenn. 2016), cert. denied sub
nom. Vanessa G. v. Tenn. Dep’t of Children’s Servs., No. 15-1317, 2016 WL 1675831
(U.S. Oct. 3, 2016) (involving a termination of parental rights case that stemmed from a
dependency and neglect finding based, in part, on inappropriate discipline); In re Kyah
H., No. E2015-00806-COA-R3-PT, 2015 WL 9426285, at *6 (Tenn. Ct. App. Dec. 23,
2015) (involving a termination of parental rights case that stemmed from a dependency
and neglect finding based on inappropriate discipline where father threw a child to the
ground and sat on another child after pushing him down); In re Angelica S., No. E2011-
00517-COA-R3-PT, 2011 WL 4553233, at *2 (Tenn. Ct. App. Oct. 4, 2011) (involving
step-mother‘s stipulation that the inappropriate discipline constituted abuse for
dependency and neglect purposes); In re J.C.W., No. M2007-02433-COA-R3-PT, 2008
WL 4414675, at *1 (Tenn. Ct. App. Sept. 26, 2008) (involving a termination of parental
rights case that stemmed from a dependency and neglect finding based on inappropriate
discipline, where the child was beaten with a belt); In re B.L., No. M2003-01877-COA-
R3-PT, 2004 WL 2451355, at *4 (Tenn. Ct. App. Nov. 1, 2004) (involving a termination
of parental rights case that stemmed from a dependency and neglect finding based on
inappropriate discipline). From the totality of the circumstances, we cannot conclude that
the evidence preponderates against the trial court‘s finding that clear and convincing
evidence was established by DCS to show that the children are dependent and neglected.

                                            III.

        We note that despite the fact that the trial court found that both Mother and Father
had perpetuated severe abuse on four of the children, neither party raises the trial court‘s
severe abuse finding in their statements of the issues. This Court has repeatedly held that
the failure to designate an argument as an issue in the party‘s appellate brief results in a
waiver of the argument on appeal. See, e.g., Forbess v. Forbess, 370 S.W.3d 347, 356
(Tenn. Ct. App. 2011) (citing Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn.
Ct. App. 2002)) (―We may consider an issue waived where it is argued in the brief but
not designated as an issue.‖). Father does argue, however, in the body of his brief that the
trial court erred in finding that he knowingly exposed the children to abuse or knowingly
failed to protect the children from abuse pursuant to Tennessee Code Annotated section
37-1-102(b)(22). In contrast, nothing in Mother‘s brief can be fairly characterized as an
argument that the trial court erred in finding that she perpetrated severe abuse on four of
                                             - 13 -
the children. Issues are waived where the appellate brief does not contain ―any argument
regarding its merits.‖ Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000) (citing
Blair v. Badenhope, 940 S.W.2d 575, 576–77 (Tenn. Ct. App. 1996); Bank of Crockett
v. Cullipher, 752 S.W.2d 84, 86 (Tenn. Ct. App. 1988)). Accordingly, it appears that both
Mother and Father have waived any argument that the trial court erred in finding clear
and convincing evidence that they perpetrated severe abuse on the children.

        Recently, the Tennessee Supreme Court in In re Carrington H., held that, ―in an
appeal from an order terminating parental rights the Court of Appeals must review the
trial court‘s findings as to each ground for termination and as to whether termination is in
the child's best interests, regardless of whether the parent challenges these findings on
appeal.‖ In re Carrington H., 483 S.W.3d at 525–26. The Carrington decision did not
concern an appeal from a dependency and neglect proceeding. No Tennessee Court has
ever held that this Court must consider whether the trial court erred in finding clear and
convincing evidence of severe abuse in an appeal from a dependency and neglect
proceeding in spite of the parents‘ failure to properly brief the issue. Indeed, as discussed
above, the Carrington holding is specifically limited to ―an appeal from an order
terminating parental rights.‖ Id. Accordingly, we do not interpret the Carrington Opinion
as requiring review of the severe abuse finding at issue in this case.

        Regardless, in an abundance of caution, we have reviewed the record to determine
whether the evidence preponderates against the trial court‘s finding of severe abuse as to
both parents with regard to LaJerrica, Quentell, Jereka, and Alaysha. Here, the evidence
shows that the children came into custody when Alaysha complained to her teacher about
being ―whipped by her mother.‖ An investigation revealed that the backsides of Alaysha,
Quentell, Jereka, and Lajerrica displayed red marks, lacerations, bruises, and scratches.
There was no dispute that Mother perpetrated these injuries on the children; Mother
contended, however, that the marks were the result of appropriate discipline with a belt
rather than an extension cord as claimed by the children. As previously discussed, severe
abuse may be found where a parent has knowingly exposed a child or knowingly failed to
protect a child from abuse that is likely to cause severe bodily injury. Tenn. Code Ann. §
37-1-102(b)(22). Serious bodily injury may include ―injuries to the skin that involve
severe bruising or the likelihood of permanent or protracted disfigurement, including
those sustained by whipping children with objects.‖ Id. § 39-15-402(d). Clearly, the
bruising, lacerations, and other marks on the children caused by whipping, regardless of
whether the instrument used was a belt or an extension cord, constitute serious bodily
injury as defined by the Tennessee General Assembly. There is no dispute that Mother
caused these injuries to the children. Indeed, Mother admitted that she pleaded guilty to
four counts of aggravated assault in connection with the injuries she perpetrated on the
children. As such, we cannot conclude that the evidence preponderates against the trial
court‘s finding that Mother committed severe abuse against Alaysha, Quentell, Jereka,
and Lajerrica.

                                           - 14 -
        Father does not dispute that the children suffered a serious bodily injury that
required their removal from the home. Instead, he argues that the trial court erred in
finding that he knowingly exposed the children to abuse or knowingly failed to protect
the children from abuse given his mental illnesses and limited intellectual ability. We,
respectfully, disagree. As previously discussed, under section 37-1-102(b)(22), severe
abuse may be found where a parent not only ―knowingly exposed‖ a child to abuse but
also where a parent ―knowingly failed to protect‖ a child from such abuse. See In re
H.L.F., 297 S.W.3d 223, 237 (Tenn. Ct. App. 2009) (finding that mother was also guilty
of severe abuse even though there was no direct evidence that mother actively engaged in
the abuse). The terms ―knowing‖ or ―knowingly‖ are not defined in Tennessee Code
Annotated section 37-1-102 or elsewhere in the chapter. This Court has previously held
that: ―The words ‗knowing‘ and ‗knowingly‘ do not have fixed or uniform meanings.
Their meanings vary depending on the context in which they are used or the character of
the conduct at issue.‖ In re R.C.P., No. M2003-01143-COA-R3-PT, 2004 WL 1567122,
at *7 (Tenn. Ct. App. July 13, 2004). Therefore, ―[a] parent who is present when a child
is abused but who fails to intervene to protect the child has knowingly exposed the child
to, or has failed to protect the child from, abuse.‖ H.L.F., 297 S.W.3d at 236. The parent,
however, need not actually be present when the abuse occurs:

      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 R.C.P., 2004 WL 1567122, at *7). A parent therefore knowingly fails to
protect a child 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.‖ Id. (quoting R.C.P.,
2004 WL 1567122, at *7).

        In this case, there is ample evidence in the record that Father was present in the
home during the beatings and that he did nothing to intervene on the children‘s behalf.
First, the children reported to DCS that Father was often in the home during the beatings
and that he sometimes participated in the abuse by beating the children with a belt. In
addition, the children reported to DCS that Father would often leave the home when the
beatings began. Finally, the children reported that Father did at least once attempt to
intervene on their behalf but that Mother stated that she could ―whip [her children] how
[she] want[ed] to whip them.‖ Accordingly, the evidence shows that Father was aware of
the nature of the abuse occurring in the home, and he himself believed that the discipline
administered was excessive but did not make a considered effort to prevent the abuse
from occurring.


                                          - 15 -
       Father argues that, despite this fact, he could not have knowingly failed to protect
the children because he ―lacked the intellectual ability to have knowingly committed
severe abuse.‖ Respectfully, we disagree. Here, Father testified that he was diagnosed
with bipolar disorder and schizophrenia. In his evaluation, however, Dr. Jones opined that
Father‘s alleged diagnoses may be the result of exaggeration. Furthermore, nothing in Dr.
Jones‘s report indicates that Father‘s mental issues or cognitive abilities prevented him
from understanding the nature of the abuse inflicted on the children by Mother. Given the
testimony regarding Father‘s one-time attempt to intervene on behalf of the children
against Mother‘s excessive use of violence as discipline, we cannot conclude that
Father‘s alleged disorders prevented him from knowing that the children were being
exposed to abuse.

        We do note that there can be no dispute that Father‘s intellectual functioning
tested in the borderline range. This Court, however, has previously affirmed a finding of
severe abuse against a parent despite the fact that the parent at issue was classified as
having Low Average to Borderline Intellectual Functioning. See In re Samaria S., 347
S.W.3d 188, 194 (Tenn. Ct. App. 2011). In this case, nothing in Dr. Jones‘s report or
deposition indicates that Father‘s failure to protect the children was the result of his
inability to understand the wrongfulness of the abuse. As such, we cannot conclude that
the trial court erred in finding that Father knowingly failed to protect the children from
abuse in spite of his borderline intellectual functioning.

                                            IV.

        Finally, Mother argues that, having found the children dependent and neglected,
the trial court erred in ordering a disposition of the children in which no visitation was
permitted between Mother and the children and no effort was made toward reunification.
Specifically, Mother argues that she made a concerted effort to comply with the juvenile
court‘s permanency plans in order to facilitate reunification with her children. In addition,
Mother contends that Dr. Jones opined that with extensive therapy and counseling,
Mother and the children could be reunited. In light of these facts, Mother argues that the
trial court erred in relieving DCS of efforts to reunify the family and in ordering a
disposition of the children that did not involve visitation or efforts at reunification.

       As previously discussed, pursuant to Tennessee Code Annotated section 37-1-130,
where a child is found to be dependent and neglected, the trial court may make any one of
several dispositions of the child ―best suited to the protection and physical, mental and
moral welfare of the child.‖ Tenn. Code Ann. § 37-1-130(a). Among the available
dispositions are allowing the child to remain in the home, granting temporary legal
custody to a third party, granting a permanent guardianship to a third party, or placing the
child in the custody of DCS. Id. Here, the trial court determined that based on the severe
abuse committed against the children, the appropriate disposition was to place the

                                           - 16 -
children in DCS custody without allowing any visitation with Mother or Father and
without requiring DCS to expend any effort at reunification.

       We conclude that the trial court did not err in making the above disposition.
Pursuant to Tennessee Code Annotated section 37-1-166, reasonable efforts are required
to be exerted prior to removal of any child into the custody of DCS. Tenn. Code Ann. §
37-1-166(a). The purpose of the reasonable efforts requirement is ―to preserve and
reunify families[.]‖ Tenn. Code Ann. § 37-1-166(g)(1). As such, section 37-1-166
requires reasonable efforts both prior to the placement of a child into foster care—―to
prevent or eliminate the need for removing the child from the child‘s home‖; and after
removal of the child—―[t]o make it possible for a child to safely return to the child‘s
home.‖ Reasonable efforts are not required, however, where:

              The parent has subjected the child that is the subject of the
              petition or any sibling or half-sibling of the child who is the
              subject of the petition or any other child residing temporarily
              or permanently in the home to aggravated circumstances as
              defined in [section] 36-1-102; . . . .

Tenn. Code Ann. § 37-1-166(a)(g)(4)(A).

        As discussed in detail above, the trial court found that Mother and Father
committed severe abuse against four of the children at issue in this case. Accordingly, the
trial court was authorized by section 37-1-166(g)(4)(A) to order a disposition of the child
that did not include an effort toward reunification. Here, the evidence also fully supports
the trial court‘s decision not to attempt to reunify the family; from the record, it appears
that the children were subject to multiple forms of excessive and abusive discipline at the
hands of their caregivers. Indeed, as previously discussed, the October 2012 incident that
is the subject of this case is not the first incident involving physical abuse that warranted
DCS investigation in the past. Under these circumstances, the trial court did not err in
declining to order a disposition that allowed visitation or maintained the possibility of
reunification.

                                        Conclusion

        The judgment of the Circuit Court of Shelby County is affirmed, and this cause is
remanded to the trial court for all further proceedings as are necessary and are consistent
with this Opinion. Costs of this appeal are taxed to Appellants, Lawanda K. and Larry K.,
for all of which execution may issue if necessary.




                                           - 17 -
         _________________________________
         J. STEVEN STAFFORD, JUDGE




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