                                                                                                        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.”


                                           -2-
       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.


                                                   -3-
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




                                            -4-
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.


                                                   -5-
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

                                    -6-
    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.



                                    -7-
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.].




                                     -8-
       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.


                                                    -9-
       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.

                                           - 10 -
        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.


                                               - 11 -
       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.




                                            - 12 -
                            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.


                                                  - 13 -
. . 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.


                                           - 14 -
       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.


                                                 - 15 -
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.


                                            - 16 -
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.


                                                   - 17 -
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

                                           - 18 -
       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

                                          - 19 -
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.




                                           - 20 -
