                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                January 31, 2011 Session

      IN RE: DEMITRUS M. T., A CHILD UNDER 18 YEARS OF AGE, ET AL.

                    Appeal from the Tennessee Claims Commission

                    No. 20050569 William O. Shults, Commissioner


                No. E2009-02349-COA-R3-CV - Filed March 14, 2011


This is a wrongful death action filed in the Tennessee Claims Commission (“the
Commission”) by the parents and brother (“the Claimants”) of six month old Demitrus M.
T. (“the Infant” or “Demitrus”), individually and on behalf of Demitrus, after he drowned in
a bathtub while in the care of Sherika Hamilton, a friend of the family identified in a
Tennessee Department of Child Services (“DCS” or “the Department”) safety plan as the
“placement caretaker.” There is no dispute that Hamilton left the Infant unattended in the
bathtub while she was otherwise occupied in an adjacent room. The primary disputes at trial
before the Commissioner, and on appeal, are whether the Infant was in the “care, custody and
control” of the Department so as to provide jurisdiction to the Commission; whether the
Department’s “Case Recordings,” some of which were made more than a month after the
event they purport to record, are inadmissible hearsay; and whether it was foreseeable to the
Department that Hamilton would leave the helpless Infant unattended in a bathtub and let
him drown. The Commission found that it had jurisdiction because the Department had
control of the Infant even though it did not have custody, that the Case Recordings were
admissible, and that the Department was not negligent because it could not have foreseen this
tragic event. The Claimants appeal. We affirm in part, reverse in part, and vacate the
dismissal on the merits.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
     Affirmed in Part, Reversed in Part and Vacated in Part; Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.

Arthur M. Fowler, III, Johnson City, Tennessee, for the appellants, Wayne T., Kelly C. and
Thunder N. bnf Kelly C.
Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General,
and David Sadlow, Assistant Attorney General, Nashville, Tennessee, for the appellee, State
of Tennessee.

                                         OPINION

                                              I.

                                             A.

       Demitrus was born April 25, 2004, to mother Kelly C. (“the Mother”) and Wayne T.
(“the Father”). He died tragically by drowning on November 10, 2004. Demitrus was
survived by the Mother, the Father, and a brother named Thunder N. The Father, the Mother,
and Thunder are “the Claimants” in this case. The Father and the Mother were never married
although they lived together a brief time, including November 2004.

                                             B.

       The claim is asserted in narrative form and provides a helpful overview of the case,
provided it is read with the understanding that some of the statements in the claim are
disputed:

              [The Department] became intimately involved in [Demitrus’]
              life on November 4, 2004. On that afternoon, [DCS] employee
              Michael Flanary visited Tyler Apartments in Johnson City while
              [the Father] and [the Mother] . . . were running errands. During
              his visit, Flanary learned that [the Father] and [the Mother],
              along with their two young children, were living temporarily
              with a relative in a small apartment at the complex. Mr. Flanary
              left word for [the Father] to contact him by telephone. Mr.
              Flanary allegedly threatened to take the children into [DCS]
              custody if [the Father] did not contact him within three hours.
              When [the Father] returned to the apartment complex, he
              received Mr. Flanary’s message and promptly telephoned Mr.
              Flanary. Mr. Flanary instructed [the Father] and [the Mother] to
              come to the [DCS] office immediately for a meeting. During
              that meeting, which took place on the afternoon of Nov. 4, 2004,
              Mr. Flanary told [the Father] and [the Mother] that their children
              should be placed in a “safe” environment until the couple could
              secure a satisfactory residence. Mr. Flanary wrote out a “safety

                                             -2-
plan” that placed three-year-old Thunder . . . and six-month-old
Demetrius . . . in the custody of Sherika Hamilton for seven
days. “The children will be safe with Miss Sherika Hamilton, of
Tyler Apartment, Apt. #4, Bldg. 5,” the plan says. . . . . The plan
was signed by [the Father] and [the Mother] , Ms. Hamilton, Mr.
Flanary, and [DCS] employees Eve McCardle and Kim
Crumley.

Sherika Hamilton is 24 years old, single, and has had little or no
experience caring for children.       She lived in a small,
government-subsidized apartment at Tyler Apartments in
Johnson City. There is no evidence to suggest the [DCS]
conducted any investigation as to whether Ms. Hamilton was
capable of caring for an infant. There is also no evidence that
the [Department] did any investigation into Ms. Hamilton’s
background or character, as required by statute, and there is no
evidence that the [Department] inspected the apartment where
the children would be staying with Ms. Hamilton. In fact, my
investigation reveals that Wayne Weaver, the manager of the
Tyler Apartment complex, in front of at least one witness,
verbally advised Mr. Flanary against leaving the children in the
care of Sherika Hamilton because Mr. Weaver had concerns
about Ms. Hamilton’s character and her ability to care for small
children.

The “safety plan” required that [the Father] and [the Mother]
find suitable housing before their children could be returned.
They found a suitable place on Nov. 5, 2004, and immediately
began efforts to secure the necessary funds to rent the apartment.
They requested that the children be returned to them in the
interim, but Mr. Flanary told them that the safety plan called for
a seven-day placement and that he intended to follow the plan.

On the afternoon of November 9, 2004, Johnson City Police
Officer Billy Mitchell was performing his regular duties as a
community patrol officer at Tyler Apartments. Officer Mitchell
noticed three small children alone on a concrete porch outside
Building Five, the building where Sherika Hamilton resided.
Officer Mitchell asked neighbors whether they knew who was
caring for the children. He was told that Sherika Hamilton was

                                -3-
supposed to be watching the children, however, nobody knew
where Ms. Hamilton had gone. Officer Mitchell arranged for a
neighbor to watch the children while he searched for Ms.
Hamilton. She appeared approximately 40 minutes later, and
she was unable to offer any reasonable explanation as to where
she had been or why she had left the children unattended.
Officer Mitchell charged Ms. Hamilton with three counts of
reckless endangerment because she had left the children
unattended for such a long time. Two of the children were
Demetrius . . . and Thunder . . . , the same children Michael
Flanary had placed in the care of Sherika Hamilton, under the
authority of the [Department].

[The Father] was contacted by a relative within an hour of Ms.
Hamilton being charged with reckless endangerment. [The
Father,] in turn, contacted [DCS] case manager Mike Flanary by
phone on that same afternoon. [The Father] informed Mr.
Flanary that Ms. Hamilton had been charged with reckless
endangerment by the police for neglecting the children. He
asked Mr. Flanary to either return the children immediately or
to have them placed in a safer environment.

Mr. Flanary, on behalf of the [Department], denied the request.
He told [the Father] that Mr. Flanary was having “personal
problems” and that he did not have time to deal with the
situation. He apparently did not contact the police to confirm
[the Father’s] claims, and he did not contact Ms. Hamilton or
otherwise check on the welfare of the two children he had
entrusted to her. He apparently did not leave instructions for
any other [DCS] employee to investigate or otherwise deal with
the situation.

The next day, Nov. 10, 2004, at approximately 6:00 p.m.,
Demetrius . . . drowned after Sherika Hamilton left him
unattended in a bathtub at 71 Charleston Square, Southgate
Village Apartments, in Johnson City, Tennessee.

Ms. Hamilton has been charged by law enforcement authorities
in Washington County for aggravated child abuse and neglect.
Evidence at her preliminary hearing revealed that she placed

                              -4-
              Demitrius in the bathtub and left him there, alone, for
              approximately 30 minutes. When she returned, Demetrius was
              floating face-down in the water. He had turned blue. Efforts to
              revive him were unsuccessful.

                                           *   *     *

              Demitrius’s parents . . . allege that the [Department] was
              negligent by virtue of its placement of Demetrius and Thunder
              with Sherika Hamilton. They allege that the [Department] failed
              to investigate or to conduct any type of meaningful inquiry into
              Ms. Hamilton’s background, character, or ability to care for
              small children. They allege that the [Department] negligently
              ignored an attempt by the manager of Tyler Apartments to . . .
              alert them to the danger of placing the children with Sherika
              Hamilton. They allege that the [Department] negligently failed
              to investigate the conditions and circumstances that would be
              facing the children. They allege that even after having been
              made aware of the fact that Ms. Hamilton had been charged with
              recklessly endangering the children on November 9, 2004, the
              [Department] failed to make even a single inquiry into the
              welfare of Demetrius . . . and Thunder . . . . They allege that
              those circumstances breach the standard of care of a “reasonably
              prudent person” as is required by the statutory and case law in
              Tennessee.      As a direct and proximate result of the
              [Department’s] negligence, Demitrius . . . remained in the care
              of a person who was unqualified and unable to care for him.
              That person subsequently left him unattended in a bathtub and
              Demetrius . . . drowned. . . . .

(Misspelling of the Infant’s name as “Demitrius” in original.)

                                               C.

        A preliminary issue that the Commission had to resolve was whether it had subject
matter jurisdiction over the claim. The Commission denied a motion to dismiss asserting
lack of subject matter jurisdiction as a matter of law and reserved jurisdiction as an issue for
trial. In its judgment rendered after trial, the Commission treated subject matter jurisdiction
as a preliminary issue and devoted approximately 25 pages of analysis, the pertinent part of
which we will set forth verbatim, to this “difficult” issue.

                                               -5-
Here, there appears to be a consensus that the State never had
custody of [the Infant]. As Ms. Par[r]is testified, custody issues
are decided by the courts.

However, In Tennessee Code Annotated, Section 9-8-
307(a)(1)(E), as Stewart v. State, 33 S.W.3d 785, 792 (Tenn.
2000) clearly held, there are found two additional jurisdictional
pegs – care and control. Therefore, in solving this jurisdictional
inquiry, the Commission must look to the record to determine
whether the State exercised care or control over [the Infant].
Black’s Law Dictionary, Sixth Ed. (1990) defines “control” as
the “power or authority to manage, direct, superintend, restrict,
regulate, govern, administer, or oversee. The ability to exercise
a restraining or directing influence over something.” See Cmty
Bank of East Tenn., 2004 WL 192408, at *3. The record here
seems to be replete with indicia of both care and control in
connection with the Department’s oversight of [the Infant’s]
welfare. For example, Ms. Par[r]is testified that the Department
was involved with the child’s life through the implementation of
a Child Safety Plan. In fact, Ms. Crumly testified that “just
getting a referral and opening a file means that you’re involved
in their lives.” Ms. Crumly also indicated the extent of the
Department’s involvement in this case through her testimony
that if a child was in a stable home, then the Department would
not have to consider moving him. However, here, because
Demitrus and his brother, Thunder, were staying in separate
households and the Department did not know where the parents
were residing, the implication is clear that the Department
would be forced to intervene in the family’s life. The power and
involvement of the Department is further evidenced by the fact
that if Demitrus and Thunder were to be returned to their
parents, a separate child and family team meeting would have to
be held to evaluate the situation. In fact, Ms. Crumly testified
that the Children’s Protective Service unit has the right to veto
a child and family team decision “if the safety of the child is not
being addressed.” Further, while the Safety Plan was in effect,
should the parents fail to abide by its provisions, then the
Department would re-evaluate the situation. Also, if the child’s
placement was changed, Ms. Crumly testified that Mr. Flanary
again would have had to have gone through the same procedural

                                -6-
steps carried out on November 4, 2004.

The pure bureaucratic process set out in Regulation 14.8(C)(3)
is indicative of the extent of the involvement of the Department
in Demitrus’ life. That provision directs that a temporary
emergency safety plan could not be implemented without the
case manager conferring with his team leader and departmental
legal counsel.

Further, Ms. Crumly testified that in Demitrus’ case, it was a
requirement that he stay with Ms. Hamilton until his parents
located and set up a home with utilities activated. She went on
to state that the parents, Ms. Hamilton, and the Department all
had a responsibility to try and ensure the safety of Demitrus . .
..

On November 4, 2004, when Mr. Flanary met with [the Father]
and [the Mother], he told them they needed to be under the
safety plan. In fact, prior to that, Ms. Par[r]is testified that the
case recordings indicated that Flanary told [the Mother’s] aunt
at her home that unless [the Mother] called him that day, further
action would be taken.

These terms and conditions of the Department’s dealings with
Demitrus . . . are clear evidence that it was involved in his day
in-day out care and control to a very large extent. In fact, this
intervention into his life and on his behalf, began shortly after
his birth when Mr. Flanary justifiably sought to involve he and
his mother in the Tennessee Early Intervention Program in order
to monitor his growth because of [the Mother’s] use of
marijuana during her pregnancy.

These powerful indicia of the Department’s involvement meet
the jurisdictional requirements of Tennessee Code Annotated,
section 9-8307(a)(1)(E).

Further, the relationship between the Department and [the]
family fits within that category of special relationships resulting
in the creation of a duty, discussed by the Court in Satterfield [v.
Breeding Insulation, 266 S.W.3d 347 (Tenn. 2008)]. These

                                -7-
              connections which the Department developed vis-a-vis Demitrus
              . . ., through its actions almost from birth, “create[d] a
              sufficiently significant obligation that there [was] an enforceable
              expectation of reasonable action rather than unreasonable
              indifference.” Id. at 360. The creation of this sort of
              affirmative duty, the Commission finds, based on the facts in
              this case, fits the Claimants’ allegations into the care and control
              criteria set out in Tennessee Code Annotated, section 9-8-
              307(a)(1)(E).

              This is not to say that every time the Department has any sort of
              interaction or contact with a family and a child, it will set itself
              up for a potential claim under Tennessee Code Annotated,
              section 9-8-307(a)(1)(E). However, where the involvement of
              departmental personnel is as pervasive and intense as it was in
              this case, the Department cannot avoid an analysis of its actions
              or inactions by simply claiming that it did not have formal
              custody of a child.

              The inquiry . . . must be more sophisticated than that.

(Record citations omitted, brackets to correct spelling added).

                                              D.

        The “CPS Safety Plan” referenced in both the claim and the Commissioner’s opinion
is part of the record in this case. The stated “risk” that generated the need for the plan was,
“Family is currently without a home, and the children are staying with a friend and family
member. Parents & DCS need to ensure the children are safe and well cared for.” As the
“desired outcomes,” the plan stated, “The children will be safe with Miss Sherika Hamilton,
of Tyler Apartment, Apt. #4 Bldg5.” The plan listed four numbered “tasks/responsibilities”
as follows:

              1. Children remain at this residence until [the Mother and the
              Father] find a residence for their family.

              2. [The Father or the Mother] will maintain contact with DCS
              Case Manager.

              3.   The parents will not remove the children into another

                                              -8-
                unexceptable [sic] place.

                4. New apartment must have lights water & heat. Apartment
                must be sound environment structurally.

                                                   E.

        The DCS “Case Recordings” referenced in the Commissioner’s opinion, and
referenced indirectly in the claim, were the subject of a motion in limine to exclude as
inadmissible hearsay as well as a renewed objection at trial1 . The Commissioner admitted
the Case Recordings, with limited redaction of content that was hearsay within hearsay, as
collective exhibit 3. The Case Recordings each bear a date that the event “occurred on” and
a “completed date.” Flanary resigned his position in December 2004 by letter stating he
could not handle the stress of the job. He did not testify at trial. The DCS allegedly did not
know his whereabouts. The only testimony concerning the Case Recordings came from
Flanary’s two supervisors, Kim Crumly and Rita Parris. Parris, who also is Crumly’s
superior, testified that she did not know why there was a lapse in time between the date some
events “occurred on” and the “completed date” of particular Case Recordings. Crumly
testified that there is no requirement that Case Recordings be completed within a set time
after a given event. She also testified that it is common practice, that varies according to the
individual, for case workers to make hand-written notes and place them in the file until they
can enter the Case Recording into the computer system. At that time, the hand-written notes
usually are destroyed. There were no hand-written notes in the file for the Infant. We will
summarize the Case Recordings that are in dispute in chronological order.

       The first Case Recording bears the date “05/06/2004" as the date the event occurred
on and the completed date. It reflects a home visit with the Mother by case manager Flanary
based on a report that both she and Demitrus tested positive for marijuana when Demitrus
was born. The mother admitted marijuana use during her pregnancy but claimed she used
the drug because it helped with her morning sickness. Flanary recommended “that TN Early
Intervention be assigned to come into the home and monitor the [Infant’s] health and
development”, and the Mother agreed.

       The next Case Recording reflects an event that occurred on “09/13/2004" with a
completed date of “11/04/2004.” It states that “CM was able to locate this family again” in
a run-down trailer infested with rats with a “very strong trash odor in the kitchen area of the
home.” It reflects that Flanary told both the Mother and the Father that the living conditions


        1
         There also were objections to relevance of references to such things as marijuana use. Relevance
issues are not raised on appeal.

                                                  -9-
in the trailer were unacceptable and gave them leads on some public assistance housing
options. It further reflects that Flanary made a return visit on “09/15/2004" to have the
Mother sign a release and states that “CM never heard from the family again about finding
an apartment or anything else.”

      The next Case Recording reflecting an occurrence date of 11/03/2004 and a
completion date of 11/04/2004 is worth repeating the “content” in its entirety.

             11/03/2004: CM conducted a home visit with Miss . . . Hamilton
             to insure that Thunder was in a safe place. CM ask[ed] Miss
             Hamilton to make contact with [the Mother] and have her call
             DCS office at 952-6087. No call received on this date.

             11/04/2004: CM conducted a home visit with Ms. Robin Adams
             to insure that Demitrus was in a safe place. CM requested her
             to have [the Mother] to contact DCS office or I would need to
             take further action to insure the children[’]s safety.

             11/04/2004: CM had a message on answering service when I
             returned from lunch.

       With one exception, all other case recordings bear a “completed date” of
“11/15/2004,” after Demitrus’ death. Three reflect occurrence dates before the death of
11/04/2004, 11/05/2004, and 11/08/05. The 11/04 occurrence is the meeting with the
parents and other DCS personnel to formulate the safety plan. Its “content” states:

             11/04/2004: CM had a message from [the Father] that he had
             gotten my message to contact the DCS office. [The Father] and
             [the Mother] came to the office at approx. 4:00 pm. CM met
             with the family to inform them that the children needed to be
             under a DCS safety plan. . . . They both agreed to work with CM
             Flanary. CM ask[ed] both parents where they wanted the
             children to stay while they are homeless. Both parents stated .
             . . Shareika Hamilton. They stated that aunt Robin Adams had
             mental health problems and she would not be a good resource
             for placement. CM wrote the safety plan and both parents
             signed the plan. Ms. Williams already had the children at her
             house. The parents would not report to this CM where they
             were staying. CM requested that they stay in touch with this
             office.

                                          -10-
       The “content” of the 11/05 occurrence reflects Flanary’s actions in securing the
signature of his supervisor, “Kim Crumly, CM3,” DCS attorney Erin McArdle, and Sherika
Hamilton on the safety plan. It also reflects that on 11/05, the Father called Flanary asking
him to look at an apartment the Father had found.

      The Case Recording for occurrence date 11/08/2004 simply reflects that Flanary
complied with the Father’s request and in fact delivered a “deposit check for $100" to the
apartment landlord at the Father’s request.

        The Case Recording for 11/10/2004 reflects limited content of numerous telephone
calls Flanary was involved in on the day of the Infant’s death and a few days thereafter. First
was a call to Flanary, who was himself traveling to Massachusetts to attend his sister’s
funeral, by the Father informing him that the Infant had drowned when Ms. Hamilton left
him unattended in a bath tub. Next was a call from Flanary to his supervisor Crumly to find
out what happened and provide any information Crumley requested. Later, there were two
calls from the Father to Flanary, the first of which Flanary missed. The Father left a
message on November 11, 2004, that he was taking Thunder and that DCS “would never find
him again.” Flanary answered a call on November 15, 2004, in which the Father inquired
whether the Department would still provide assistance to him in renting an apartment.

        The final Case Recording was made on November 30, 2004, by Kim Crumly
reflecting her conversations with various individuals at the hospital on the day Demitrus
drowned. She arrived before the Infant had been pronounced dead after receiving a
telephone call from police investigator Jason East. When Demitrius was pronounced dead,
Crumly reported the death to her supervisor who told her to continue the investigation. She
saw to it that Thunder was brought to the hospital at the request of the Father and the Mother.
She talked to the Father and the Mother who “reported that [Flanary] had done much to help
them and they appreciated all the help he had given.” Crumly’s supervisor “agreed that
Thunder could go home” with his aunt, the Mother’s sister. Crumly followed investigator
East to the police department where they were advised that Hamilton had “confessed to
leaving the child alone while she made the bed in another room.”

      The Commission treated the Case Recordings as admissible under both Tenn. R. Evid.
803(6) and 803(8). The Commission explained:

              [T]hose . . . case recording entries prepared by Mr. Flanary and
              admitted at trial are indeed admissible since they were identified
              by foundational witnesses Par[r]is and Crumley and were
              prepared within relative proximity to the dates of the events
              recounted therein. These reports appear to the Commission to

                                             -11-
             be typical of reports regularly prepared by DCS case workers –
             such as Flanary – in fulfillment of their normal job
             responsibilities. Preparing such reports clearly appears to be a
             proper exercise and implementation of those powers granted
             DCS under Tennessee Code Annotated, section 37-5-106(1) as
             the Department through its employees, attempted here to attain
             the purpose for which it was created as set out in Tennessee
             Code Annotated, section 37-5-102.

             Significantly, in large part, what Mr. Flanary recorded was also
             testified to by the Claimants. In those few instances where case
             recording entries . . . were excluded, the Commission was not
             able to identify an exception to the hearsay rule permitting the
             introduction of hearsay within hearsay.

             Additionally, Tennessee Rules of Evidence, Rule 803(8)
             provides a second avenue for the admissibility of some of these
             allegedly hearsay statements. . . . .

                                        *    *     *

             Here, the records sought to be introduced by the State are
             “records [and] reports” made by an agency charged with
             protecting the welfare of children and “setting forth the
             activities of [that] office”.

             The Commission FINDS that with the exceptions noted above,
             the majority of the statements contained in Collective Exhibit 3
             . . . are admissible under the provisions of Tennessee Rules of
             Evidence, Rules 803(6) [and] (8) . . . as exceptions to the
             hearsay rule.

                                            F.

      The Commission’s findings as to liability provide a helpful frame of reference as to
how some of the factual issues, including witness credibility, were resolved.

             All parties involved in this case, as well as the Commission,
             obviously acknowledge that the death of young Demitrus . . . .
             was a tragedy. There can be no doubt whatsoever regarding that

                                            -12-
proposition. The issue now before the Commission is whether
or not the State of Tennessee was negligent in causing that death
and therefore, is liable to the Claimants under the Tennessee
Claims Commission Act.

The proof presented throughout the trial of this matter shows
clearly that both Demitrus and his older half-brother, Thunder
. . . , were living in a chaotic situation.

Demitrus was born to a mother who chose to use a controlled
substance while she was pregnant with him. The Commission
finds no evidence whatsoever in this record that the use of
marijuana has ever been found to be indicated in connection
with an expectant mother’s pregnancy related symptoms. In
fact, the Commission categorically does not believe [the
Mother]’s testimony that this is why she was using marijuana
while she was pregnant with Demitrus.

Further, at the time of Demitrus’ death, neither of his parents
was working and, in fact, [the Father] testified that he “wasn’t
around a lot” during the pregnancy.

Following revelation by medical personnel at the Johnson City
Medical Center that both [the Mother] and her infant son had
evidence of marijuana in their systems, Mr. Flanary of DCS
contacted [the Mother] in connection with the TennKids Early
Intervention Program. Apparently, this program is designed to
monitor the development of at risk children following birth. The
program seems to be directed at assessing a child’s growth in
light of adverse birth circumstances, which here involved the
[M]other’s drug abuse while pregnant. A case recording from
November 15, 2004, which the Commission found to be both
admissible and relevant, also documents Mr. Flanary’s
frustration with the parents for not staying in touch with him
after he became involved in their lives. In fact, a case recording
prepared by Mr. Flanary on November 4, 2004, before the
child’s death, indicates that he found the family by happenstance
on September 13, 2004, and returned the following day to obtain
[the Mother]’s signature on a release which was needed in
connection with his work with the family. The fact that Mr.

                               -13-
Flanary was still attempting to obtain signatures on documents
from the family in connection with DCS’s efforts on their behalf
nearly five months after the child’s birth is indicative of their
failure to maintain contact with him following [the Mother]’s
release from the hospital after Demitrus’ birth and placement in
the TennKids Early Intervention Program.

Additionally, it is abundantly clear from the proof in this case
that both parents were abusing marijuana, or as [the Father]
called it “herb” or “weed”, which he testified he sometimes
bought from Sherika Hamilton. The Commission finds that [the
Mother] certainly was using marijuana before the birth of her
child Demitrus and, along with [the Father], in all likelihood,
both before and after Demitrus’ birth.

Further, the Commission does not believe Claimants’ testimony
that they objected to the placement of the two children with
Sherika Hamilton during the seven day period called for by the
Child Safety Plan which they voluntarily signed on November
4, 2004. Both parties had known Ms. Hamilton for an
appreciable period of time. She had visited with them in
Asheville, North Carolina, before they moved to Johnson City.
Either [one or both of the parents] had lived with a relative of
Ms. Hamilton’s when they first moved to Johnson City. Ms.
Hamilton lived in the same apartment complex (Tyler
Apartments) where [the Mother] had, in 2002 and part of 2003,
been the night manager, and where Claimants also lived before
inexplicably leaving that apartment and eventually moving into
a ramshackle trailer in Johnson City where they were residing
with five to six month old Demitrus and his older half-brother,
Thunder, until mid-October 2004, when they were forced to
leave that home because of insufficient heat.

At that point, Thunder was deposited by [the Father] and [the
Mother] with Ms. Hamilton with whom [the Mother] had lived
while she was pregnant with Thunder . . . , and who she had
chosen to be Thunder’s godmother. At the same time, Demitrus
was in the home of [the Mother]’s aunt, Robin Adams, who had
just recently moved into the Tyler Apartments where Ms.
Hamilton lived. Ms. Adams’ own two children were, according

                              -14-
to her, friends of Ms. Hamilton, and Ms. Adams described Ms.
Hamilton as being “nice”. Even while the Safety Plan was in
effect, the proof is that [the Mother] and [the Father] visited
with the children after November 4, 2004, at Ms. Hamilton’s
home. In fact, when Ms. Hamilton was cited by the Johnson
City Police for child endangerment on November 9, 2004, for
leaving children unattended at Tyler Apartments, she went to
Ms. Adams’ apartment to report what had happened, leaving
both Demitrus and Thunder there while she completed the legal
paperwork with the police officers.

Both of these Claimants have a significant amount of college
education. In fact, [the Mother] had studied social work at East
Tennessee State University where she had a 3.6 average. The
Commission does not believe that [DCS] personnel forced
Sherika Hamilton on [the Mother and the Father] as a placement
choice on November 4, 2004, or that they did not understand
that there were legal options available to them if they did not
agree with the contents of what the evidence shows was a
voluntary plan.

These Claimants are both far too intelligent to have meekly
accepted Ms. Hamilton as a seven day placement resource if in
fact they actually had sincere objections to their longtime
friend’s home as a place for the children to live until they were
able to locate adequate housing.

The proposition that there was something dramatically awry in
the . . . family unit in November of 2004, is also borne out by
other facts in this case. Although [the Father] has college
training in a technical area, the proof shows that he was
convicted two times in the last ten years of being in possession
of stolen property. In fact, he had just been released from the
State of North carolina’s penal system shortly before he met [the
Mother] in Asheville in 2002.

Further, when [the Father] and [the Mother] began their
relationship in 2002, [the Mother] was still legally married, and
still is, to a man she claims not to have seen since 1998.
Additionally, following her separation from that gentleman, she

                              -15-
had become pregnant by another man, who is the father of her
son, Thunder . . . .

Further, shortly after Demitrus’ birth in 2004, [the Mother]
attempted suicide. Following this frightening event, it was not
[the Father] who was summonsed to care for Demitrus and
Thunder while [the Mother] was hospitalized in Johnson City
and Knoxville, Tennessee. Rather, friends and family of [the
Mother] stepped in to assist with the children’s care during [the
Mother]’s hospitalizations. In fact, initially, [the Mother]’s
good friend, Rebecca Rowe, first took Thunder . . . to Sherika
Hamilton’s following the suicide attempt. Eventually, [the
Mother]’s sister picked Thunder up. During this entire period,
the children’s caregivers changed some three to four times and
there is no proof that [the Father] was involved with the two
boy’s care during this very disturbing episode.

There is also no proof in this record that Sherika Hamilton was
being paid by the State of Tennessee for caring for her friends’
two children under the CPS Safety Plan. In fact, the State
presented testimony that it did not pay her anything for taking
care of the children.

Although Ms. Hamilton’s conduct in leaving six and one-half
month old Demitrus in a bathtub alone obviously was quite
negligent, in other respects Ms. Hamilton’s actions appear to be
admirable. The Claimants themselves had permitted Thunder
. . . to stay with Ms. Hamilton in the past, and he was with her
before November 4, 2004, when Claimants were having shelter
problems. [The Father] testified that Thunder loved Ms.
Hamilton. The proof is also unrebutted that beginning on
November 4, 2004, Ms. Hamilton agreed to open her home to
both children – apparently on a completely uncompensated basis
– while Claimants attempted to rectify their housing problems.

The fact of the matter is that both of these educated, intelligent
Claimants voluntarily signed a Plan which provided that the
children would stay with Ms. Hamilton for at least seven days.
Their signatures on the Plan, therefore, are more telling than
perhaps would be the case with less intelligent and less educated

                               -16-
individuals.

The Claimants, at trial, obviously objected to the actions of Case
Manager Michael Flanary and have alleged that those actions
“partially” caused the death of their son.

However, the proof shows undeniably that throughout Demitrus’
brief life, Mr. Flanary tried to better his circumstances. From
the outset, Mr. Flanary attempted to enroll the child in the
TennKids Early Intervention Program because of the possible
after-effects of his mother’s use of marijuana while she was
pregnant with him. In July of 2004, when his mother attempted
suicide, Mr. Flanary contacted Ms. Cook while she was
hospitalized. Even later, in September of 2004, in connection
with his work with another family, Mr. Flanary encountered the
. . . family living in a sub-standard mobile home in urban
Johnson City. The proof also indicates that Flanary had
difficulties keeping in contact with the family because of their
failure to apprise him of their whereabouts. A case recording
prepared on November 4, 2004, again before the child’s death,
documents that in light of the circumstances Flanary found the
family living in around mid-September of 2004, he gave [the
Mother] information regarding possible housing options and of
the possibility of State assistance in defraying moving expenses.
On September 15, 2004, Flanary returned to the Unaka Avenue
mobile home in order to obtain [the Mother]’s signature on a
release which the Commission believes he needed in connection
with Demitrus participation in TennKids Early Intervention
Program.

The case recordings and proof at trial show that from November
3, 2004, even up to the date of the child’s death, Mr. Flanary
attempted to help the . . . family locate and pay for a decent
place to live, even to the point that on a day off from work
[November 9, 2004] just before leaving for his sister’s funeral
in Massachusetts, he took a deposit check on the family’s new
apartment to the landlord since [the Father and the Mother] had
no means of transportation. That these efforts were appreciated
is evidenced by Ms. Crumly’s testimony that on November 10,
2004, while at the hospital following Demitrus’ death, [the

                               -17-
Mother] and [the Father] told her that they appreciated what
Flanary had done for them. On November 15, 2004, [the Father]
even contacted Mr. Flanary and inquired as to whether he could
still assist the family in finding an apartment.

The Commission FINDS that both Flanary and the Department
tried mightily to assist this family, including Demitrus, at a time
when their lives were seriously unsettled and the children’s
welfare clearly in jeopardy. The Commission does not believe
that Mr. Flanary’s resignation from the Department on
December 1, 2004, resulted from anything other than his grief
over the child’s death. The Commission does not find that this
resignation can or should be considered as some sort of
admission of guilt by him.

The proof is overwhelming that Flanary engaged in several
efforts on behalf of the . . . family designed to shelter Demitrus
and Thunder from the poor circumstances they were living in.

The Claimants’ claim seems to be based on the proposition that
since they were not homeless on November 4, 2004, a Child
Safety Plan should never have been put in place and that had the
plan not been created, the child would not have been with
Sherika Hamilton on November 10, 2004, when she temporarily
left the bathroom to make a bed and he drowned. Claimants
insist that the Commission should isolate its analysis to whether
or not their family was homeless at the time and ignore other
evidence regarding why that homelessness occurred. In other
words, Claimants allege that since they were not homeless on
November 4, 2004, a Child Safety Plan was not necessary and
the fact that it was implemented put Demitrus in harm’s way by
placing him with Sherika Hamilton. Following Claimants’
logic, had the child not been with Sherika Hamilton at the time,
then she never would have left him in the bathtub alone thus
creating an opportunity for a drowning episode. Claimants also
rely heavily on the contention that consistently, between
November 4 and November 10, 2004, they requested the return
of their children and the termination of the Child Safety Plan but
were denied even up until November 9, 2004, when Ms.
Hamilton was charged with child endangerment, a fact also they

                               -18-
relayed to Case Manager Flanary.

Claimants alleged at trial a procedural failing on the part of the
State since a complete background check was not done on
Sherika Hamilton prior to the implementation of the November
4, 2004, Child Safety Plan. However, that plan was voluntarily
signed by all parties late . . . on November 4, 2004, and the next
day by Mr. Flanary’s immediate supervisor as well as a
departmental attorney. It appears that the Department moved
forward with the process as quickly as humanly possible and
that immediate action appeared to be necessary in light of the
fact [that the Mother] and [the Father] had already placed their
children in two separate homes and were not forthcoming with
Mr. Flanary about where they were living and where the family
would live in the coming winter.

Additionally, the claimants fault the Department for not having
conducted a complete background check on Sherika Hamilton.
However, the proof is abundant that [the Mother] and [the
Father] knew Ms. Hamilton well, and that they voluntarily
entered into a plan under which both Demitrus and Thunder
would live in Ms. Hamilton’s home for seven days, a short
distance from Ms. Adams’ home where claimants contend they
were living at the time. Further, although a complete
background check apparently was not done, Supervisor Rita
Par[r]is testified she reviewed DCS records for any history of
problems Ms. Hamilton may have had.

A troublesome issue raised by the claimants is their contention
that [the Father] contacted Mr. Flanary by cell phone as Flanary
was traveling to Massachusetts for his sister’s funeral and
informed him, on November 9, 2004, that Hamilton had been
charged that day with child endangerment as described above.
[The Father] claims that Flanary told him he did not have time
to deal with that situation as he was on his way home for his
sister’s funeral. Ms. Crumly testified that Mr. Flanary should,
nevertheless, have looked into the situation and that there is no
record that he did so after his phone conference with [the
Father]. Ms. Crumly also testified that if Mr. Flanary was
having problems communicating by cell phone with [the

                               -19-
             Father], he should have told [the Father] to contact someone else
             at the Department at the time.

             The Commission does not believe that these relatively minor
             procedural mistakes are sufficient to establish [the] claim by a
             preponderance of the evidence. The proof is overwhelming in
             this record that Sherika Hamilton had been close to both of these
             claimants for a number of years. Ms. Hamilton was godmother
             to . . . Thunder and the testimony shows that Ms. Hamilton
             visited them in Asheville and that for a period of time, after
             returning to Johnson City, either one or both of the claimants
             lived in the home of a relative of Ms. Hamilton. In fact, when
             Ms. Hamilton was charged with child endangerment, she went
             immediately to the apartment where [the Mother] and [the
             Father] were supposedly staying at the time. Also, [the Mother]
             and [the Father]’s objections to Ms. Hamilton appear to be quite
             disingenuous since not only was Ms. Hamilton the godmother
             of . . . Thunder but apparently neither [the Mother] or [the
             Father] objected to Thunder staying with Ms. Hamilton even
             though [the Father] testified she was selling marijuana out of her
             home.

             Failings on the part of Mr. Flanary and the Department pale in
             comparison to the factors which lead the Department to believe
             that the . . . family was homeless and in need of the
             implementation of a Child Safety Plan for their two children.

             The Commission FINDS that the circumstances of Demitrus’
             death were purely accidental and caused by the negligence of
             Ms. Hamilton in leaving him in a bathtub unattended while she
             made the bed in another room. This, quite obviously, was a
             severe lapse in judgment on her part as all seem to agree that a
             child six and one half months old should never be left
             unattended in a bathtub.




      Based upon these findings the Commission found that the claim failed “for three
reasons,” some of which are redundant. First, it found that there was not a “breach of the

                                            -20-
admitted duty owed to Demitrus. There is simply no way that Mr. Flanary or any other state
employee could have foreseen that Ms. Hamilton, a longtime friend of the claimants would
be so negligent as to leave a small child alone, for any period of time, in a bathtub of water.”
Second, it found, “given the fact that the Commission believes the cause of Demitrus’ death
was the unfortunate negligence of Ms. Hamilton, we . . . find that any of the activities or
alleged failings of the State and its employees in this case [were not] a substantial factor in
the child’s drowning.” Third, it found that the Department’s actions could not be the
proximate cause of the death because “there has been no showing that a person of ordinary
intelligence and prudence did or could have reasonably foreseen what happened to Demitrus
. . . on the evening of November 10, 2004 . . . .”

                                                     II.

        The Claimants purport to state a multitude of issues in a narrative format that we do
not find helpful in understanding the case. The State asserts a challenge to subject matter
jurisdiction as its own separate issue.2 We will summarize the issues in the order we intend
to address them without regard which party has raised them.

                Whether the Commission had subject matter jurisdiction over
                this case as one involving the “care, custody and control” of a
                person pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(E)(Supp
                2010 & 1999).

                Whether Sherika Hamilton was the agent of DCS for whom it
                could be held liable.


                Whether some or all of the Case Recordings were inadmissible
                hearsay.

                Whether the evidence preponderates against the Commission’s
                finding that the drowning was not foreseeable.




        2
         Out of concern that we may not have had jurisdiction, early in the case we ordered the parties to
brief the issue of whether the notice of appeal was timely. The State concedes in its brief that the
“[C]laimants’ filing of a notice of appeal . . . was within the thirty day period provided for under” Tenn. R.
App. P. 4(a) because the order was not entered until several days after it was signed. We are satisfied with
the State’s concession and will not discuss the issue further.

                                                    -21-
                                            III.

       The standard by which we review actions of the Commission is the same as the
standard for reviewing actions of a trial judge in a court of record. See Bowman v. State,
206 S.W.3d 467 (Tenn. Ct. App. 2006).

              Appeals from decisions by the Commission . . . are governed by
              the Tennessee Rules of Appellate Procedure. Tenn. Code Ann.
              § 9-8-403(a)(1) (Supp.2005). Accordingly, because the Claims
              Commission hears cases without a jury, this court reviews the
              Commission's factual findings and legal conclusions using the
              now familiar standard in Tenn. R. App. P. 13(d). Thus, we will
              review the Commission's findings of fact de novo with a
              presumption that they are correct unless the evidence
              preponderates otherwise. Beare Co. v. State, 814 S.W.2d 715,
              717 (Tenn. 1991); Dobson v. State, 23 S.W.3d 324, 328-29
              (Tenn. Ct. App. 1999); Sanders v. State, 783 S.W.2d 948, 951
              (Tenn. Ct. App. 1989). The Commission's legal conclusions,
              however, have no similar presumption of correctness. Turner
              v. State, 184 S.W.3d 701 (Tenn. Ct. App. 2005), perm. app.
              denied (Tenn. Oct. 24, 2005); Crew One Productions, Inc. v.
              State, 149 S.W.3d 89, 92 (Tenn. Ct. App. 2004); Belcher v.
              State, No. E2003-00642-COA-R3-CV, 2003 WL 22794479, at
              *4 (Tenn. Ct. App. Nov.25, 2003), perm. app. denied (Tenn.
              May 10, 2004).

Id. at 472. As to factual disputes for which the Commission makes no factual findings, we
are empowered to make our own findings based on our de novo review for the
preponderance of the evidence. Kesterson v. Varner, 172 S.W.3d 556, 566 (Tenn. Ct. App.
2005). Of course, there is no presumption of correctness for findings that were not made. Id.
We employ an abuse of discretion standard in reviewing the Commission’s evidentiary
rulings. See Arias v. Duro Standard Prods., 303 S.W.3d 256, 262 (Tenn. 2010). Under this
standard, we will defer to the Commission unless it “has misconstrued or misapplied the
controlling legal principles or has acted inconsistently with the substantial weight of the
evidence .” White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999).

                                            IV.

                                             A.



                                            -22-
       We begin with the question of whether the Commission erred in finding that it had
subject matter jurisdiction over this claim. “The jurisdiction of the Claims Commission is
a question of law that we review de novo with no presumption of correctness.” Mullins v.
State, 320 S.W.3d 273, 278 (Tenn. 2010). There is a multitude of cases explaining the
relationship between sovereign immunity and the subject matter jurisdiction of the
Commission. See, e.g., Id.; Stewart v. State, 33 S.W.3d 785, 790 (Tenn. 2000); Conley v.
State, 141 S.W.3d 591, 597 (Tenn. 2004). We need not rebuild those foundations in this
case. For the purposes of the present case we can start with the truth that the State retains
immunity for all claims except those claims enumerated in Tenn. Code Ann. § 9-8-
307(a)(Yr.). Stated another way, “the Claims Commission lacks subject matter jurisdiction
and has no authority to hear any claims that fall outside the categories enumerated in section
9-8-307(a).” Mullins, 320 S.W.3d at 279.

       The particular question we are concerned with in the present case is whether this is
properly construed to be a claim arising out of the “[n]egligent care, custody and control of
persons." Tenn.Code.Ann.§9-8-307(a)(1)(E).3 In construing the breadth of the statute, we

        3
          The complete list of “categories which the Claims Commission or each commissioner has exclusive
jurisdiction to hear are:”

                (A) The negligent operation or maintenance of any motor vehicle or any
                other land, air, or sea conveyance ...;

                (B) Nuisances created or maintained;

                (C) Negligently created or maintained dangerous conditions on state
                controlled real property ...;

                (D) Legal or medical malpractice by a state employee ...;

                (E) Negligent care, custody and control of persons;

                (F) Negligent care, custody or control of personal property;

                (G) Negligent care, custody or control of animals ...;

                (H) Negligent construction of state sidewalks and buildings;

                (I) Negligence in planning and programming for, inspection of, design of,
                preparation of plans for, approval of plans for, and construction of, public
                roads, streets, highways, or bridges and similar structures, and negligence
                in maintenance of highways, and bridges and similar structures ...;

                                                                                               (continued...)

                                                   -23-
must be guided by the general assembly’s stated “intent . . . that the jurisdiction of the claims
commission be liberally construed to implement the remedial purposes of [§ 9-8-307].”
Mullins, 320 S.W.3d at 279 (quoting Tenn. Code Ann. § 9-8-307(a) Supp. 1985)).
Nevertheless, we must not forget the “general rule that statutes permitting lawsuits against
the State ‘are in derogation of the state’s inherent exemption from suit and must be strictly
construed.’ ” Mullins, 320 S.W.3d at 279 (quoting Beare Co. v. Olsen, 711 S.W.2d 603, 605

       3
           (...continued)
                   (J) Dangerous conditions on state maintained highways ...;

                  (K) Workers' compensation claims by state employees ...;

                  (L) Actions for breach of a written contract between the claimant and the
                  state ...;

                  (M) Negligent operation of machinery or equipment;

                  (N) Negligent deprivation of statutory rights created under Tennessee law,
                  except for actions arising out of claims over which the civil service
                  commission has jurisdiction ...;

                  (O) Claims for the recovery of taxes collected or administered by the state
                  ...;

                  (P) Claims for the loss, damage or destruction of the personal property of
                  state employees based on § 9-8-111;

                  (Q)(i) Claims for injuries incurred by persons where such injury occurred
                  while the person was a passenger in a motor vehicle operated by a state
                  employee while such employee was acting within the scope of
                  employment....

                  (R) Claims for libel and/or slander ...;

                  (S)(i) Claims for compensation filed under the Criminal Injuries
                  Compensation Act....

                  (T) Actions based on § 69-1-201;

                  (U) Actions based on violations of the requirements of procurement of
                  commodities or services ...; and

                  (V) Unconstitutional taking of private property[.]


Mullins, 320 S.W.3d at 279-80(quoting Tenn.Code Ann. § 9-8-307(a)(1)).

                                                      -24-
(Tenn. 1986)). The practical effect of these competing principles upon the statutory language
has been explained for us by the Supreme Court. In Northland Ins. Co. v. State, 33 S.W.3d
727 (Tenn. 2000), the Court stated that “liberal construction of an existing category . . . is a
different proposition than a construction creating a new category.” Id. at 730 (emphasis in
original). In Stewart, the Court stated,

              A policy of liberal construction of statutes, however, only
              requires this Court to give the most favorable view in support of
              the petitioner's claim, and such a policy does not authorize the
              amendment, alteration or extension of its provisions beyond [the
              statute's] obvious meaning. Moreover, where a right of action
              is dependent upon the provisions of a statute . . . we are not
              privileged to create such a right under the guise of a liberal
              interpretation of it.

33 S.W.3d at 791 (internal quotation punctuation and citations omitted, brackets and
omissions in original). The policy of liberal construction is thus best invoked “in cases
where the statutory language legitimately admits of various interpretations.” Id.

       In Mullins, the Court considered the issue of “whether the Tennessee Claims
Commission had subject matter jurisdiction to hear a claim against the State of Tennessee
arising from the death of a young child who had been removed from his mother's home and
placed in the custody of the mother's aunt by order of the juvenile court.” 320 S.W.3d at 275.
The Court provided this succinct summary of the facts of the case:

              The child and his two brothers were removed from their
              mother's care because of her use of cocaine. At the mother's
              request and after an investigation, the Department of Children's
              Services recommended to the juvenile court that custody of the
              children be awarded to the mother's aunt. Less than a month
              after the court entered the order of custody, the mother reported
              concerns about the children's well-being to the Department. A
              case worker investigated the aunt's home and found no basis to
              remove the children. Ten days later, one of the children, a
              five-year-old boy, died from extensive injuries allegedly
              inflicted by the aunt's nineteen-year-old daughter who lived in
              the home.




                                              -25-
Id. The Court held “that the Claims Commission did not have subject matter jurisdiction to
hear the claim because the child was not in the care, custody, and control of the State.” Id.

        The State’s position in the present case is that Mullins controls this case and requires
a holding that the Commission does not have jurisdiction. The holding of Mullins is
obviously important, but it is equally important that we understand what Mullins did not
hold. Mullins affirmed that part of this court’s judgment which “held that the Claims
Commission did not have jurisdiction to hear claims alleging negligence by DCS that
occurred after the juvenile court’s order granting custody to [the aunt] and the placement of
the children in her home.” Id. at 278 (emphasis added). The issue of the correctness of this
court’s ruling “that the Claims Commission had jurisdiction to hear Ms. Mullins’ claim
relative to [the child’s] placement with [the aunt], because at that time, DCS had custody
and control of [the child] and concurrent responsibility for his case” was not raised before
the Supreme Court and was not addressed. Id. & n.4(emphasis added). With regard to the
issue and facts before it, the High Court stated that the claim under consideration “is more
appropriately characterized as one for negligent investigation, a category the legislature did
not include in section 9-8-307.” Id. at 283. The Mullins Court approved the holding of both
Holloway v. State, No. W2005-01520-COA-R3-CV, 2006 WL 265101 (Tenn. Ct. App. W.S.,
filed Feb. 3, 2006) and Draper v. State, No. E2002-02722-COA-R3-CV, 2003 WL 22092544
(Tenn. Ct. App. E.S., filed Sept. 4, 2003), “that the Claims Commission did not have
jurisdiction of a claim for negligent investigation of a referral for possible child abuse.”
Mullins, 320 S.W.3d. at 282.

        The bright line that separates the present case from Mullins is that the only claim
being examined by the High Court in Mullins for jurisdiction was based on facts, i.e., the
negligent investigation, that came after the child was placed in a third party’s custody by
court order. The Court expressly stated that the “State did not have care, custody, or control
of [the child] after the juvenile court awarded custody of him to [the aunt] – at this point, [the
aunt] was the only one who had custody of [the child] and thus the responsibility and
obligation to provide care for him and control over him.” Id. Thus, the only basis for
jurisdiction would have been the lone act or omission of negligent inspection for which there
existed no private right of action.

        In the present case, the was no such court order placing custody in Ms. Hamilton.
Hamilton had the Infant as the “placement custodian” as a result of the safety plan which was
initiated by the Department. In our opinion in Mullins, we held that the Commission had
jurisdiction over the “one claim” concerning the Department’s actions that preceded the court
ordered placement with the aunt. That “one claim . . . that falls within this time frame is the
contention that DCS was negligent in its investigation of the [aunt’s] home prior to [the
child’s] placement there [by court order].” 2009 WL 1372209 at *9. We distinguished the

                                              -26-
facts before us in Mullins from the facts of Draper and Holloway, stating,

              In this case, unlike Draper and Holloway, there is a period of
              time that the State had taken custody of the child. When [the
              child] was initially removed from [his m]other’s home by DCS,
              he was clearly in the care, custody, and control of the State. In
              T.C.A. § 37-2-402(5)[now § 37-1-102(15)], “foster care” is
              defined as

                      the temporary placement of a child in the custody
                      of the department of children’s services or any . .
                      . home, whether public or private, for care outside
                      the home of a parent or relative (by blood or
                      marriage) of the child, whether such placement is
                      by court order, voluntary placement agreement,
                      surrender of parental rights or otherwise. . . .

Id. at *8.

        The Commission determined in the present case that the Infant was not in the custody
of the DCS, but was nevertheless in the control of the DCS. The High Court in Mullins
recognized that the mere lack of legal or physical custody is “not entirely determinative.”
320 S.W.3d at 281. The proper inquiry is whether the State’s involvement is such that it may
be fairly said to have exercised either care, custody, or control. Id. (analyzing Hembree v.
State, 925 S.W.2d 513, 517 (Tenn. 1996)(jurisdiction over release of a mental patient into
the community); Stewart, 33 S.W.3d at 792 (read in the disjunctive so that failure to exercise
control will give jurisdiction if there was a legal duty to control or actual control assumed but
negligently exercised) ; and Conley, 141 S.W.3d at 591(no jurisdiction for negligent pre-
admission screening because no showing that limited involvement devolved into control).
The inquiry is made in the disjunctive; the State need not have exercised all three functions.
Stewart, 33 S.W.3d at 792.

       Following the guidance we have been able to glean out of the cases, with particular
reference to that part of our opinion in Mullins that was not at issue on appeal to the High
Court, we hold that jurisdiction was proper in the present case. This case is not controlled
by the Supreme Court’s opinion in Mullins, because of the distinctions we have discussed.
Our opinion in Mullins suggests that the mere fact that the parents consent does not prevent
the placement from being one that would invoke jurisdiction for “care, custody and control”
pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(E). It also suggests that a DCS initiated
removal of a child out of the care of the parents and placement in another home, however

                                              -27-
temporary, and however parental friendly, will invoke jurisdiction. However, given the
record in the present case, we need not go that far to find jurisdiction. As found by the
Commission, the record indicates that unless the parents had called Flanary on the day he
found Thunder and Demitrus in separate homes, he would have intervened through some
channel more drastic than a “team meeting.” The team meeting did happen, at which time
DCS told the parents – it did not ask – that the situation must change. Once the team meeting
was conducted, specific standards were set which (1) required that the children remain with
Hamilton, (2) required that the parents maintain contact with DCS, (3) forbade the parents
from moving the children to a place not approved by DCS, and (4) required that any new
residence be approved by DCS. According to the testimony of DCS employees, the children
could not be returned to their parents without a second meeting between the parents and a
DCS decision maker. The safety plan itself characterizes the situation with Hamilton as a
“placement” of the children. According to DCS employee Crumly, the term “placement” is
generally synonymous with “custody.” A safety plan generally is considered by the
Department to be an “intrusive” measure. The regulations that the Department follows to
implement a safety plan confirm a high level of DCS involvement, as found by the
Commission. In short, we agree with the Commission that the facts in this case establish
DCS control sufficient to establish jurisdiction in the Commission. This is not a situation
where we are being asked to create a “new category.” See Northland, 33 S.W.3d at 730.
Rather, this is a situation “where the statutory language legitimately admits of various
interpretations” and we are simply following the General Assembly’s instructions to “give
the most favorable view in support of the . . . claim.” Stewart, 33 S.W.3d at 791 (citations
and internal quotation marks omitted).

        Before moving to another issue, we think it important to note that we do not agree
with all of the Commission’s reasons for exercising jurisdiction. One of the stated reasons
was that the Department’s actions created a duty toward the Infant, which, “based on the
facts in this case, fits the Claimants’ allegations into the care and control criteria . . . .”
Mullins, Holloway, and Draper all indicate that, especially in this area of DCS involvement
with children, duty cannot be even roughly equated with jurisdiction. Further, the
Commission indicated that it was basing jurisdiction on actions that dated all the way back
to the first home visit near the time of the Infant’s birth. We do not necessarily disapprove
of looking at the totality of the State’s involvement in a given case, but we want any reader
of this opinion to understand that a simple home visit which goes no further than to make
constructive suggestions for a positive home life does not come close to “care, custody and
control” within the meaning of Tenn. Code Ann. § 9-8-307(a)(1)(E).

                                              B.

       Having concluded that the Commission had jurisdiction over the claim, we will briefly

                                             -28-
address the Claimants contention the Hamilton was an agent of the State for which it could
be held liable. This contention is based upon the theory that the State, by and through
Flanary, forced Hamilton upon the parents as the placement caretaker. The Commission
found to the contrary. The evidence does not preponderate against the Commission’s
findings with regard to the parents’ involvement in the choice of Hamilton. Moreover, even
if we disagreed with the Commission’s findings and found that somehow Flanary forced
Hamilton on the parents, that does not make the state liable for Hamilton’s actions. The only
“acts of omissions” for which the State may be held liable under Tenn. Code Ann. § 9-8-307
are those of “state employees.” Hamilton was not an employee and there is no showing in
this record that Flanary could somehow deputize her into being an employee. The
Commission specifically found that Hamilton was not compensated and was simply acting
as a friend. The evidence does not preponderate against that finding. The State correctly
points out in its brief that, while the definition of “employee” includes “a foster parent under
. . . contract with the state of Tennessee,” Hamilton was not under contract and was not a
“foster parent.” See Tenn. Code Ann. § 8-42-101(3)(Supp. 2010). The argument that
Hamilton was an agent of the Department for whom it could be liable is without merit.

                                              C.

        We move now to the issue of whether some or all of the Case Recordings should have
been excluded as inadmissible hearsay. There is no question that the Case Recordings are
hearsay as defined in Tenn. R. Evid. 801. They are therefore inadmissible unless they fit
within an exception. Tenn. R. Evid. 802. The burden to establish that hearsay fits within an
exception to the hearsay rules is on the proponent of the evidence. Godbee v Dimick, 213
S.W.3d 865, 895 (Tenn. Ct. App. 2006); see State v. Stamper, 863 S.W.2d 404, 405 (Tenn.
1993). The Commission found that the Case Recordings fit within the “business records”
exception of 803(6) and the “public records” exception of 803(8). We will look at the rules
in turn.

      The hearsay exception commonly called the “business records” exception is found at
Tenn. R. Evid. 803(6). It states:

              A memorandum, report, record, or data compilation, in any
              form, of acts, events, conditions, opinions, or diagnoses made at
              or near the time by or from information transmitted by a person
              with knowledge and a business duty to record or transmit if kept
              in the course of a regularly conducted business activity and if it
              was the regular practice of that business activity to make the
              memorandum, report, record or data compilation, all as shown
              by the testimony of the custodian or other qualified witness ...,

                                              -29-
              unless the source of information or the method or circumstances
              of preparation indicate lack of trustworthiness. The term
              “business” as used in this paragraph includes business,
              institution, profession, occupation, and calling of every kind,
              whether or not conducted for profit.

For a document to be admitted as a business record, it must satisfy five criteria. They are:

              1. The document must be made at or near the time of the event
              recorded;

              2. The person providing the information in the document must
              have firsthand knowledge of the recorded events or facts;

              3. The person providing the information in the document must
              be under a business duty to record or transmit the information;

              4. The business involved must have a regular practice of making
              such documents; and

              5. The manner in which the information was provided or the
              document was prepared must not indicate that the document
              lacks trustworthiness.


Arias, 303 S.W.3d at 263(quoting Alexander v. Inman, 903 S.W.2d 686, 700 (Tenn. Ct.
App. 1995)). As to whether the Case Recordings fit within the business records exception,
about all the State’s brief says is that DCS witnesses identified the documents as DCS Case
Recordings and that the Commission, in its discretion, properly found the documents
admissible. Based on our own review of the record, we are satisfied that the second, third,
and fourth foundational criteria were present. The trouble, if any, is with the first and fifth.
Those are the criteria that the Claimants challenge. Again, we will take these components
one at a time.

       There is precious little evidence in this case whether or not the Case Recordings were
made “at or near the time” of the event recorded. The face of the documents purport to
record the date of the event and the “completed” date of the report. There is no testimony
about what those terms mean, so we are left with nothing but the face of the documents to
inform our decision whether the Commission abused its discretion.



                                              -30-
       Neither party has cited any cases interpreting what the timing must be for a document
to be prepared “at or near the time” of the event recorded. We have found only scant
authority in our own research. A treatise often cited in Tennessee cases provides, in toto,
one short paragraph discussing the requirement.

              Rule 803(6) mandates that the memorandum must have been
              “made at or near the time” of the event . . . contained in the
              record. This requirement precludes admissibility of reports
              drawn up long afterwards, when memories may be hazy. It
              should be noted, however, that federal authorities interpreting
              the same language have been liberal in determining whether the
              memorandum was made in a timely fashion. The key issue is
              whether the lapse of time between the event and the record of
              the event interferes with the likely accuracy of the business
              record.

Cohen, et al., Tennessee Law of Evidence § 8.11[7] (Fifth Ed. 2005). A footnote to the text
concerning “federal authorities” refers to Seattle-First Nat’l Bank v. Randall, 532 F.2d
1291, 1296 (9th Cir. 1976), as a federal case requiring the record to be made
“contemporaneously” with the event or a “reasonable” time thereafter. In the pocket part,
the treatise refers the reader to Godbee, 213 S.W.3d at 865, as the one state court case on
point. In Godbee, the trial court had allowed the defendant doctor in a medical malpractice
trial to admit, pursuant to Tenn. R. Evid. 803(6), a letter from a colleague asserting,
essentially, that the defendant did not violate the standard of care. The letter was written
approximately one year after the MRI which the defendant allegedly misread. This court
held that letter was not made at or near the time of the occurrence, the MRI. Id. at 895. All
that Godbee tells us is that one year after the event or occurrence is too late.

       In the absence of any better source, we adopt the reasoning of Cohen, et al., that “[t]he
key issue is whether the lapse of time between the event and the record of the event interferes
with the likely accuracy of the business record.” We believe it captures the essence of the
rationale for admitting business records as a hearsay exception.

       Applying that rationale to the facts of the present case, we conclude that the Case
Recording “completed” on “05/06/2004" recording a home visit that “occurred on”
“05/06/2004" was properly admitted as a business record. We conclude that the Case
Recording “completed” on “11/04/2004" reflecting events on “09/13/2004" and
“09/15/2004" were not admissible as business records. We hold that in the absence of proof
that Flanary had some phenomenal memory, or interim notes that captured the events and
allowed him to record them later, or some other explanation of why the documents were

                                              -31-
accurate despite the lapse of over a month, the State, as the proponent of the evidence failed
to make the required showing that they were made “at or near the time” of the occurrence.
The testimony of Crumly at best creates a possibility that Flanary may have, depending on
his individual preferences, made some interim notes. We review this evidentiary ruling
under the more lax abuse of discretion standard but hold that the error comes from the
Commission’s failure to either apply the “at or near the time” component of the business
records exception, or to hold the State to its burden of proving that component. The Case
Recording “completed” November 4, 2004, concerning home visits of the children at
separate homes on November 2 and November 4, 2004, was properly admitted. Finally, we
cannot say that the Commission abused its discretion in admitting any of the Case Recordings
“completed” on November 15, 2004, or the final entries made by Crumly on November 30
as business records. With the one exception of Crumly’s lengthy entries concerning her
investigation of the death, the longest lapse of time is eleven days. During those eleven days
Flanary’s sister died and he understandably attended her funeral in Massachusetts. The only
fact of which we are aware that weighs somewhat against admitting the records is the fact
that Demitrus died between the time of some of the events and the completion date of the
records.4 The Claimants, in fact, argue that this timing makes the records more likely to have
been prepared for litigation, and therefore untrustworthy and inadmissible. This same
argument was made to the Commission and rejected by the Commission. The Commission
noted, correctly, that most of the events reflected in these same records were established to
be consistent with the records through independent testimony. Moreover, the Commissioner
had the opportunity to view the witnesses, and we accord considerable deference to his first-
hand experience with the witnesses. In short, we cannot find that the Commission failed to
apply the correct legal standards or that he applied incorrect facts in making his
determination as to the Case Recordings “completed” on November 15, 2004 and November
30, 2004. Therefore, we find no abuse of discretion.

        Before moving to another issue, we must consider whether the Commission erred in
finding that the Case Recordings reflecting events of “09/13/2004" and “9/15/2004"qualified
as public records admissible pursuant to Tenn. R. Evid. 803(8). If they were admissible
under 803(8), it matters not that we have held them inadmissible under 803(6). Rule 803(8)
states:




        4
          Apparently, Crumly made one other note concerning an unsubstantiated report by the Father that
Flanary and Hamilton had some sort of inappropriate relationship. Crumly’s superior, not Parris, told her
to note the allegation in a hard copy and not in the computerized data base used for Case Recordings. The
hard copy was not produced in discovery. We will not impute “[un]trustworthiness” to the whole Case
Recording data base simply because of one note made somewhere else in the DCS system of an
unsubstantiated allegation.

                                                  -32-
              Unless the source of information or the method or circumstances
              of preparation indicate lack of trustworthiness, records, reports,
              statements, or data compilations in any form of public offices or
              agencies setting forth the activities of the office or agency or
              matters observed pursuant to a duty imposed by law as to which
              matters there was a duty to report, excluding, however, matters
              observed by police officers and other law enforcement
              personnel.

        We agree with the Claimants that the same time lapse that rendered the particular Case
Recording for the events of 09/13/04 and 09/15/04 inadmissible as business records rendered
them untrustworthy as public records. This is because the “method or circumstances of
preparation” include a lapse of time that would cause anyone to question whether the record
reflects what happened in one particular day with one particular client when many days with
many other events involving many other clients had intervened. We hold that the
Commission erred in admitting the Case Recording completed 11/04/04 purporting to reflect
events that occurred on 09/13/04 and 09/15/04 as public records. We disagree with the
Claimants that they could not have been public records simply because they were produced
subject to a protective order and were not generally open to the public. Rule 803(8) does not
require that a document must be displayed for public viewing to qualify as a public record.


                                              D.

        We turn now to the merits of the dismissal of the case based on the Commission’s
finding that the death of Demitrus was not foreseeable to the Department. We agree with the
Claimants that if the Father reported the child endangerment charge against Hamilton to
Flanary or someone else at the Department, it became foreseeable to the Department at that
time that harm to Demitrus from some variety of neglect by Hamilton was foreseeable. The
law does not require that DCS foresee that “an injury should occur in the same exact way or
to the same extent as that which did occur,” i.e., death by drowning after leaving an infant
alone in the bathtub; all that the law requires is that DCS “foresee that some injury of a like
general character is not unlikely to result from” leaving children with someone who would
place them in dangerous situations and not watch them. Spivey v. St. Thomas Hosp., 211
S.W.2d 450, 456 (Tenn. Ct. App. 1947). Morevover, a report such as allegedly made by the
Father would make the present case analogous to Giggers v. Memphis Housing Authority,
277 S.W.3d 359, 365 (Tenn. 2009). In Giggers, knowledge that an individual who
frequented a housing complex had violently assaulted one tenant in the complex established
a “prima facie case of specific forseeability” of harm to other tenants. Id. at 367. On the
other hand, if there was no such report, we agree with the Commission that there was nothing

                                             -33-
to alert the Department that Demitrus would be neglected and left in danger by Hamilton.
The case against the Department rises or falls on the determination of whether the Father
alerted someone at the Department of the child endangerment charge against Hamilton.

        The State argues the case as if the Commission found that the Father did not report
the child endangerment to Flanary. The Claimants argue the case as if the Commission found
that the Father did report the child endangerment charge against Hamilton directly and
expediently to Flanary. The Commission did not make an explicit finding on this crucial
issue of fact. There is, however, certainly material in the record to support both sides of the
dispute. It appears that the State offered nothing, other than the absence of an entry in the
Case Recordings, to contradict the testimony of the Father that he called Flanary on
November 9, 2004, and reported the child endangerment charge to Flanary. The Mother and
two other witnesses corroborated the Father’s story. The two corroborating witness were not
cross-examined on this particular point. The Commission’s reference to “procedural”
failings of the Department might or might not have been referring to Flanary’s failure to act
on the alleged report of child endangerment, either by talking directly to the parents or by
passing the call on to other DCS workers. On the other side of the coin, the Commission
found that both the Father and the Mother were unbelievable on many points of testimony.
Our review suggests that the only testimony of the Father or the Mother that the Commission
credited was testimony that was corroborated by records. The Commission might simply
have believed that the corroborating witnesses were biased and disbelieved them.

        We are empowered to make a determination on a factual issue that the Commission
did not resolve. Kesterson, 172 S.W.3d at 566. In this present case, however, we believe the
better course is to remand the case to the Commission for a determination of whether the
Father reported the child endangerment to Flanary. There are several reasons for our
determination. First, we are unsure of whether or not the Commission made the
determination. We have explained that confusion. We are hesitant to make our own
independent finding on the mistaken belief that the Commission made no finding. Second,
even if the Commissioner made no finding, leaving us free to make our own, the Commission
has an obvious advantage over us in having seen the demeanor of all the witness who
testified regarding this particular fact. Third, we have previously held that some of the
evidence the Commission admitted and referenced in making its decision should have been
excluded. We believe it makes better sense to remand the case to the Commission for
consideration of all the points on which we have provided guidance than to make piecemeal
determinations whether erroneous admission of evidence was harmless error and whether the
report by the Father that we deem crucial to the case did or did not happen. Accordingly,




                                             -34-
because we read the dismissal, in all its stated reasons5 , to be based upon lack of
foreseeability, and we have held that foreseeability depends on whether or not the
Department was alerted to the child endangerment episode, a fact which will need to be
determined and the finding articulated, we vacate that part of the judgment that dismissed the
case on the merits and remand for further proceedings.

                                                      V.

        The judgment of the Commission is affirmed in part, reversed in part, and vacated in
part. That part of the judgment holding that the Commission had subject matter jurisdiction
is affirmed as is that part of the judgment admitting the Case Recordings other than the one
completed November 4, 2004, concerning events that occurred on September 13, 2004 and
September 15, 2004. That part of the judgment admitting the inadmissible Case Recording
is reversed. That part of the judgment holding that the State could not be liable because the
death of Demitrus was not foreseeable is vacated. Costs on appeal are taxed to the appellee,
State of Tennessee. This case is remanded to the Commission for further proceedings
consistent with this opinion.




                                                            _______________________________
                                                            D. MICHAEL SWINEY, JUDGE




        5
         The Commission did not explicitly state that lack of foreseeability was the basis for its finding that
the Department’s actions were not a “substantial factor in the child’s drowning,” but that is the only way we
are able to make sense of the finding. The Commission referenced “common sense” as a basis for its
determination. “Common sense” suggests that if the Department knew Hamilton was placing the children
that were in her home pursuant to their safety plan in danger by neglecting them, their failure to act on that
knowledge was a substantial factor in causing the death that later occurred because she placed the Infant in
danger of drowning by leaving him alone in the tub.

                                                     -35-
