                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                               Assigned on Briefs November 30, 2012

                                           IN RE JAYCEE W.

                          Appeal from the Circuit Court for Perry County
                              No. 2010CV26      Robbie Beal, Judge




                    No. M2012-00524-COA-R3-JV - Filed February 27, 2013


This is a dependency and neglect case focusing on Jaycee W. (“the Child”), the minor
daughter of Ellie H. (“Mother”) and Jerry W. (“Father”).1 At age five weeks, the Child
suffered a suspicious broken leg. Further examination revealed multiple other broken bones.
The Department of Children’s Services (“DCS”) immediately took the Child into protective
custody and filed a dependency and neglect petition alleging that the Child was severely
abused in the custody of her parents. Following an adjudicatory hearing, the juvenile court
found that the Child was dependent and neglected and that both parents had committed
severe child abuse. Both appealed to the trial court.2 Following a trial de novo, the trial
court made the same findings. Mother appeals the trial court’s finding that she is guilty of
severe child abuse.3 We affirm.

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

C HARLES D. S USANO, J R., P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Larry Joe Hinson, Jr., Hohenwald, Tennessee, for the appellant, Ellie H.




        1
            Apparently, the parents were never married to each other.
        2
            All references to the “trial court” are to the Circuit Court for Perry County.
        3
        Father also filed a timely notice of appeal. Thereafter, this Court granted his motion to voluntarily
dismiss his appeal. We refer to Father only as is necessary to relate the relevant facts with respect to
Mother’s appeal.
Robert E. Cooper, Jr., Attorney General and Reporter, and Dianne Stamey Dycus, Deputy
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.

                                           OPINION

                                                I.

        Mother and Father had lived together with Marie H., the Child’s maternal
grandmother (“Grandmother”), in the latter’s home for two years when the Child was born
on December 3, 2009. Two weeks later, the Child was admitted to the hospital with feeding
difficulties. After a ten-day stay, she was released on December 24 with a temporary feeding
tube in place. X-rays taken during her hospitalization confirmed that the Child had no
broken bones at that time. On Sunday, January 10, 2010, Mother and Father came to the
emergency room and requested that the Child be examined for a bruise on her leg that they
had noticed the night before. An x-ray revealed a fractured left tibia.4 Mother advised the
triage nurse:

                 She has a fractured leg. We have no idea how it happened. We
                 think it may be from sleeping in the bed. His momma watched
                 her one day; my momma watched her one day.

The Child was treated and released.

       Later that day, Child Protective Services (“CPS”) received a referral on the Child.
Mother spoke with an investigator by phone and said that the Child had been sleeping with
her and Father and they may have rolled over on her causing the injury. CPS arranged to
have the family transported back to the hospital the next day for a further examination of the
Child. A full skeletal x-ray revealed, in addition to the fractured tibia, a fractured left femur5
and four healing rib fractures, two on either side.

       CPS and DCS personnel interviewed Mother and Father at the hospital on Monday.
At trial, they testified to the information and statements they had received during the
interview. Both Grandmother and the Child’s paternal grandmother had briefly watched the
Child three days earlier, on Thursday. Mother noticed that the Child’s leg was swollen on
Friday; by Saturday night, it was visibly bruised. Mother and Father said that the main


       4
           Upper leg bone.
       5
           Lower leg bone.

                                               -2-
reason for their initial visit to the hospital on Sunday was because Father had injured his
ankle while cutting wood at his father’s house. When the DCS case worker asked if the
Child would have been seen by a doctor if Father had not hurt himself, Father replied,
“Probably not.” Father described his own mother as “crazy” and suggested Grandmother
could have injured the Child. At the hospital, the doctors met with Mother and Father with
the investigators present. The doctors reported their findings and told the parents that the
Child had sustained “forced injury.” The parents “continued to state that they did not know
for sure how this could happen.” Mother and Father left the room to call Grandmother and
inquire of her if she knew what had happened to the Child. When Mother and Father
returned, “[Father] stated that [Grandmother] said that she had dropped [the Child] due to her
knees giving out.” The investigators further noted that Father was not employed in the two
weeks between the time the Child was released from the hospital with a feeding tube and the
time of the Child’s emergency room visit. He reported being terminated from his job as a
result of missing work during the Child’s earlier hospitalization. Mother reported that she
and Father had bad tempers, but felt Father’s temper had improved since the Child was born.
Both had been drug users in the past. The case worker also spoke with Grandmother by
phone, who related that she had fallen on the Child that Thursday. DCS immediately took
the Child into protective custody and filed a petition to declare the Child dependent and
neglected and a victim of severe abuse.

        Dr. Kris Parks Rehm, a pediatric hospitalist, saw the Child the day after her initial
emergency room visit. The Child’s hospital records reflected a reported fall on Thursday,
swelling and decreased motion on Saturday, and an emergency room visit late Sunday night.
Dr. Rehm found it troubling that medical care was not sought sooner for the injury. He
estimated that the leg fractures had occurred within days of the Child’s admission, while
callus formations indicated that the rib fractures were “a bit older.” Dr. Rehm concluded, to
a reasonable degree of medical certainty, that the Child’s injuries were due to “non-
accidental trauma” and could have led to death. He explained that for a non-mobile, newborn
infant, there was no other “possible explanation” for the multiple injuries of varying ages that
the Child sustained. Dr. Rehm stated that the posterior rib fractures, in particular, were
“very suggestive of inflicted trauma.” The Child’s injuries would have been painful, usually
manifested in an infant by crying and fussiness. Dr. Rehm conceded that there were often
no symptoms of a fracture and a parent or even a pediatrician might not be aware of such an
injury without an x-ray.

       At trial, Grandmother testified that Mother called her from the hospital on January 10,
2010, and asked her to lie and say that she fell on top of the Child while holding the infant.
Grandmother said she and Mother both panicked and she agreed to lie because she “didn’t
know what was actually going on.” Grandmother said she should not have told investigators
that she had fallen with the Child when she had not. Grandmother recalled that the parents

                                              -3-
had been with the Child at the home of the Child’s paternal grandfather in the days before
January 10. When they returned, the Child’s leg was bruised. Grandmother said she
suggested “keeping an eye” on the leg even though the Child didn’t seem to be in pain, but
Mother became more concerned and took her to the hospital. Grandmother agreed that
Father had hurt his ankle at his father’s house, but insisted that “[t]he main reason that they
went to the hospital was for that baby, not for him.” Grandmother reiterated that she lied
about falling with the Child because she and Mother both panicked since “me and her both
knew she did not do this to her baby.”

        Grandmother testified that the parents did not have a good relationship. She described
Father as a “very troubled young man” who was “abusive,” “unstable,” and “controlling.”
Father “kept Mother in the back of the home a lot” and Grandmother heard them arguing.
She said it got “pretty bad” in the months before the Child was born. Grandmother witnessed
Father use his fists to punch several large holes in the walls of her home in “one of his angry
states.” Grandmother testified that she and Mother discussed Father before the Child’s birth.
She stated that Mother had said she was very afraid of Father. Grandmother told Mother to
“be careful.” According to Grandmother, Mother primarily took care of the Child and Father
was not left alone with the Child except when Mother was in another part of the house.
Grandmother never witnessed Mother or Father harm the Child. Grandmother recalled one
time she heard a loud noise and went to the parents’ room to check on the Child; she saw
Mother holding the Child and crying. Father ordered Grandmother to “get out.” Several
times, Grandmother kicked Father out of her home, with Mother in agreement, but he
returned every time when the couple reconciled. Grandmother said that the parents had been
separated since the time of the Child’s removal, when they “got [Father] out for good.”

       In April 2010, a DCS investigator and a detective interviewed Mother again. At that
time, Mother elaborated on her and Father’s past relationship. Mother reported that Father
physically abused her more than once both before and during her pregnancy. She found pills
and evidence of Father’s cocaine use in their home the month before the Child was born;
Father said the items were “nothing.” Father took his father’s prescription medications,
drank alcohol and was “violent” toward her. Mother had observed Father being “rough with
[the Child] at times.” She had seen Father bouncing the Child, then about four weeks old,
up and down on his knee while saying, “[The Child] is not going to be a woozy.” Mother
reported that she would often go to the kitchen to cook “and she would leave [the Child] in
the room with [Father] and then hear the Child scream.” The investigator further noted
Mother’s statements to the effect that

              [w]hen [Mother would] go back in there and check on [the
              Child], [Father] would get mad. He would say things like,
              “Why do you have to come in here all the GD time.” Overall,

                                              -4-
                  [Mother] stated that she thought that [Father] was jealous of . . .
                  her and [the Child’s] relationship.

        Mother testified at the adjudicatory hearing. She was present at the proceedings in
the trial court, but did not testify.6 Other witnesses testified that since the Child’s removal,
Mother and Father had remained separated. Mother had become engaged and had a new
child with her fiance. Following a DCS study of her current home, Mother retained custody
of that child. In the months after the Child’s removal, the juvenile court granted custody of
the Child to Mr. and Mrs. B., a paternal aunt and her husband. The Child, age 2, continued
to live with them at the time of the proceedings in the trial court.

       In its final order, the trial court found that the Child was dependent and neglected and
that both Mother and Father committed severe child abuse. The court ordered the Child to
remain in the custody of Mr. and Mrs. B., and remanded the case to the juvenile court for a
“post dispositional hearing.” Mother filed a timely notice of appeal.

                                                       II.

      Mother raises a single issue for this Court’s consideration. As taken verbatim from
Mother’s brief, the issue is as follows:

                  Whether the trial court erred when it found that [Mother]
                  committed severe abuse pursuant to [Tenn. Code Ann.] § 37-1-
                  102(b)(23) (2010).

                                                       III.

       The trial court’s findings of fact are reviewed de novo upon the record accompanied
by a presumption of correctness unless the preponderance of the evidence is against those
findings. Id.; Tenn. R. App. P. 13(d). Whether the combined weight of the facts establish
clearly and convincingly that the parent committed severe child abuse is a question of law,
subject to de novo review with no presumption of correctness. In re Samaria S., 347 S.W.3d
188, 200 (Tenn. Ct. App. 2011). Severe child abuse in a dependency and neglect case must
be established by clear and convincing evidence. Id.; Tenn. Dep’t of Children’s Servs. v.
David H., 247 S.W.3d 651, 655 (Tenn. Ct. App. 2006). Clear and convincing evidence
eliminates any serious or substantial doubt concerning the correctness of the conclusions to
be drawn from the evidence, see In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002), and it
should produce a firm belief or conviction with regard to the truth of the allegations sought

       6
           Father did not appear at the adjudicatory hearing or in the trial court.

                                                       -5-
to be established. O’Daniel v. Messier, 905 S.W2d 182, 188 (Tenn. Ct. App. 1995); In re
Estate of Armstrong, 859 S.W.2d 323, 328 (Tenn. Ct. App. 1993).

                                                       IV.

        We begin with a well-settled principle: “Parents have a duty to provide, and children
have a corresponding right to be provided with, a safe environment, free from abuse and
neglect.” In re R.C.P., M2003-01143-COA-R3-PT, 2004 WL 1567122 at *6 (Tenn. Ct.
App. M.S., filed Jul. 13, 2004)(citing M.F.G. v. Dep’t of Children & Families, 723 So. 2d
290, 292 (Fla. Dist. Ct. App. 1998); C.L.S. v. C.L.S., 722 S.W.2d 116, 121 (Mo. Ct. App.
1986); In re S.D.S., 648 S.W.2d 351, 353 (Tex. Ct. App. 1983); West Va. Dep’t of Health
& Human Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 475 S.E.2d 865, 879 (W.Va.
1996)). In the case at bar, the trial court found that the Child was dependent and neglected
in her parents’ care pursuant to Tenn. Code Ann. § 37-1-102(b)(12)(B)(C)(F) and (G)
(2010).7 The trial court expressly found that the Child’s injuries were “intentionally caused”
and the result of severe child abuse. Specifically, the court found that Father perpetrated the
abuse by “rough-housing [the] newborn infant,” thereby knowingly using force on the Child
that was likely to cause great bodily injury. The court found that Mother also committed
severe abuse when she “knowingly and repeatedly exposed the [C]hild to and knowingly
failed to protect the [C]hild from Father” and his abuse – abuse that was likely to and did,
in fact, cause great bodily injury. As relevant herein, “[s]erious bodily injury to the child”
includes “a fracture of any bone.” Tenn. Code Ann. §§ 37-1-102(b)(23)(A)(ii), 39-15-402(d).
(Supp. 2012).

      Mother challenges only the trial court’s finding that she is guilty of severe child abuse.
She essentially argues that there is no evidence that she “knowingly” exposed the Child to


       7
           The cited provisions of Section 37-1-102(b)(12) define a “dependent and neglected child” as a child:

                  (B) Whose parent, guardian or person with whom the child lives, by reason
                  of cruelty, mental incapacity, immorality or depravity is unfit to properly
                  care for such child;
                  (C) Who is under unlawful or improper care, supervision, custody or
                  restraint by any person, corporation, agency, association, institution, society
                  or other organization or who is unlawfully kept out of school;

                                                   *    *    *

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

                                                       -6-
or failed to protect the Child from severe abuse by Father. She reasons that there was
nothing she did and that she was not privy to facts that would have led her to recognize that
Father severely abused the Child or that it was highly probable he would do so. We disagree.

       As relevant to Mother’s appeal, the statute defines “severe child abuse” as “[t]he
knowing exposure of a child to or the knowing failure to protect a child from abuse or
neglect that is likely to cause great bodily harm or death . . . .” Tenn. Code Ann. §
37-1-102(b)(23)(A)(i). With respect to the “knowing” element of a severe abuse claim in a
dependency and neglect proceeding, this Court has stated:

              A person’s conduct is “knowing,” and he or she acts, or fails 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. In re H.L.F.,
              297 S.W.3d 223, 235 (Tenn.Ct.App.2009). Persons act
              “knowingly” when they have specific reason to know the
              relevant facts and circumstances, but deliberately choose to
              ignore them. In re R.C.P., No. M2003–01143–COA–R3–PT,
              2004 WL 1567122 (Tenn.Ct.App. July 13, 2004).

In re Michael R.O., Jr., W2011–02488–COA–R3–PT, 2012 WL 1884699 at *5 (Tenn. Ct.
App. M.S., filed May 24, 2012).

        In support of its ultimate conclusion that Mother was guilty of severe child abuse, the
trial court made extensive findings of fact. The court stated as follows:

              On initial interview in January 2010, [Mother and Father]
              denied that they caused these injuries to the [C]hild. In fact, the
              parents called . . . Maria H., and asked her to lie and say that she
              had fallen while holding the [C]hild.

              Mother disclosed to DCS and law enforcement that she
              continued to allow Father to care for the Child and left him
              alone with the Child despite her concerns and/or knowledge of
              the following:

              Mother knew Father was violent. . . ;




                                              -7-
              [The] Child would scream out at times while alone with Father.
              ..;

              Mother was concerned that Father was too rough with the
              [C]hild. . . ;

              Violence by Father [against] Mother began occurring two
              months after Mother and Father began dating. . . ;

              Father pushed, shoved, and hit Mother multiple times. . . ;

              Mother caught Father “shooting up” illegal drugs a month
              before the [C]hild was born and found a “burned spoon”. . . ;

              Mother never sought help from Father’s abuse;

              Mother expressed she had concerns of leaving the [C]hild alone
              with Father. . .;

              Father punched multiple holes in the walls of the family’s home
              . . .;

              Mother suffers from anxiety for which she is prescribed Xanax;

              Father was defensive on multiple occasions when Mother heard
              the [C]hild cry . . .;

              Mother witnessed Father “rough-house” with the newborn
              [C]hild and expressed concerns. . . .

The fact that Mother may not have actually witnessed Father inflicting injury does not make
her any less culpable for the abuse the Child certainly suffered. The trial court accurately
summarized the many reasons – many given by Mother herself – that caused Mother concern
and should have prevented her from entrusting the care of the fragile infant to Father for any
length of time, even while Mother was present elsewhere in the home.

      Again, parents who have not themselves severely abused their child may still be
found to have committed severe child abuse if they knowingly exposed the child to, or
knowingly failed to protect the child from, conduct constituting severe child abuse. Tenn.
Code Ann. § 37-1-102(b)(23)(A) - (C). Armed with the knowledge and concerns she had,

                                             -8-
Mother offered no real explanation for the Child’s injuries when first confronted with them
at the hospital. In our view, Mother’s decision to call and ask Grandmother to lie about the
cause of the injuries is perhaps the most glaring example of her failure to act on behalf of the
Child. Mother by then knew that the Child needed protection, but chose instead to shield
Father. In doing so, she initially allowed the Child to return home to live in the presence of
Father. It was not until months later, long after the Child was removed and Mother and
Father had separated, that Mother was first forthcoming with investigators. At that time,
Mother made statements that implicated Father as the person responsible for inflicting the
injuries that the Child sustained. Among Mother’s statements to her, the DCS investigator
testified to the following:

              [Mother] had remembered that [she had] left [the Child] alone
              with [Father] for 72 hours before [the Child] had to go to the
              emergency room. She remembered that . . . [the paternal
              grandmother] had also kept [the Child] while [Father] cut wood
              on . . . Thursday. [Mother] stated she had not seen [Father] do
              anything to hurt [the Child], but if she had to choose between
              someone hurting [the Child], it would be [Father].

              [Mother] said she would pick [Father] because of the way that
              they fought with one another. She said it would probably be
              [Father] who had did [sic] something to [the Child] – got mad
              and did something to [the Child].

       The trial court found that Father directly perpetrated the severe abuse on the Child –
then a five-week-old infant who relied on a newly inserted feeding tube – by handling her
in a manner that inflicted multiple fractures over the course of a few weeks thereby causing
her serious bodily injury. In summary, Mother knew Father could be “violent,” had seen
Father handling the Child roughly, heard the Child scream while alone with Father, and
expressed concern about leaving the Child with Father. Given the evidence before us,
Mother’s position that there were no signs to indicate that Father had severely abused the
Child or that severe child abuse by Father was highly probable to occur is wholly
unpersuasive.

        The evidence does not preponderate against the trial court’s findings. We conclude
that there is clear and convincing evidence to support the trial court’s finding that Mother
committed severe child abuse when she “knowingly exposed the [C]hild to and knowingly
failed to protect the [C]hild from abuse that was likely to cause great bodily harm.” The trial
court did not err, and we reject Mother’s argument to the contrary.



                                              -9-
                                              V.

        The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Ellie H. This case is remanded to the trial court, pursuant to applicable law, for enforcement
of the trial court’s judgment and for the collection of costs assessed below.




                                     __________________________________________
                                     CHARLES D. SUSANO, JR., PRESIDING JUDGE




                                              -10-
