                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    February 2, 2011 Session

                                      IN RE NIRVANNA S.

                      Appeal from the Law Court for Sullivan County
                       No. C13780     John S. McLellan, III, Judge




                 No. E2010-01358-COA-R3-JV - Filed February 28, 2011




This is a dependent and neglected case concerning Nirvanna S. (“the Child”), the minor child
of Heather S. (“Mother”) and Mark S. (“Father”). Following the death of the Child’s infant
sister, the Department of Children’s Services (“DCS”) filed a petition in juvenile court
alleging that, in the care of Mother and Father, the Child was dependent, neglected and
severely abused. The juvenile court held an adjudicatory hearing and determined that the
Child was dependent and neglected – but not severely abused – by her parents. The juvenile
court awarded temporary custody of the Child to DCS and charged the department with
undertaking reasonable efforts toward reunifying the Child with Mother and Father. DCS
appealed the order to the trial court. Following a bench trial, the court found that both
parents had committed severe abuse against the Child’s sister pursuant to Tenn. Code Ann.
§ 37-1-102(b)(23)(A) and that the Child was dependent and neglected and “severely abused”
within the meaning of the law. The court ordered DCS to retain custody of the Child; it
relieved DCS of its obligation to work toward reunifying the Child with Mother and Father.
Mother appeals.1 Following our review, we modify that part of the trial court’s opinion
finding that the Child was “severely abused.” In all other respects, the judgment is affirmed.

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

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



        1
        Father was a party to the proceedings below and filed a timely appeal, but it was subsequently
dismissed on his motion. Accordingly, Father is not a party to this appeal and we refer to him only as is
necessary to relate the underlying facts.
Katherine L. Tranum, Kingsport, Tennessee, for the appellant, Heather S.

Robert E. Cooper, Jr., Attorney General and Reporter and Alexander S. Rieger, Assistant
Attorney General, Office of the Attorney General, Nashville, Tennessee, for the appellee,
Tennessee Department of Children’s Services.

                                          OPINION

                                               I.

       Father and Mother are the married parents of two children – the Child, born on
February 27, 2007, and her late sister, Dreama, born on December 1, 2008. Mother worked
extended hours as a cake decorator for Food City, while Father stayed home and cared for
the children.

        On the afternoon of April 23, 2009, emergency medical providers responded to a call
of an infant in cardiac arrest at the family’s home. They arrived to find four-month-old
Dreama laying unconscious on the kitchen floor with Father attempting to perform CPR.
Father offered only that he had found the infant not breathing. An EMS technician noted a
bluish color around Dreama’s earlobes and fingernails. This indicated to the technician that
the infant had not been breathing for some 30 minutes to an hour. Emergency personnel
briefly attempted to revive her, without success, before transporting her to the hospital, where
she was pronounced dead shortly after her arrival. Father had brought the Child to the
hospital with him and called Mother, who arrived soon afterwards. She was “distraught” and
“inconsolable” when she learned that Dreama had died. While at the hospital, the Child also
underwent a physical examination and x-rays, the results of which showed no signs of abuse.

         Dr. Kelly Chumbley saw Dreama at the emergency room and conducted the
postmortem examination. Initially, he observed bruises, old and new, on several areas of her
body, as well as torn rectal tissues. Based on his physical findings, Dr. Chumbley ordered
a full body x-ray that revealed numerous broken bones including multiple broken ribs and
numerous leg and other fractures. He opined that the leg fractures “represent that the child
was violently shaken or whipped from side to side as one part of the leg or the joint was . . .
held . . . .” Dr. Chumbley noted his impressions of “cardiopulmonary arrest [of] questionable
etiology” and child abuse. Dreama’s case was referred for further investigation to the
sheriff’s department and Child Protective Services (“CPS”).

       Over the next several hours, Detective Georgian Pascue took four statements from
Mother. Therein, Mother denied the possibility that she or Father had ever hurt Dreama, but
admitted seeing bruises on the infant and was aware that Dreama’s legs were hurting her.

                                              -2-
Mother further stated that both children slept in the same bed with her and Father and Father
had rolled over onto Dreama. In his statement, Father denied inflicting injury on Dreama but
admitted that he was her primary caregiver and offered no explanation for or other possible
source of her injuries. Both Mother and Father admitted to nearly daily use of marijuana and
to being “busted” for attempting to manufacture methamphetamine. Upon searching the
family’s single-wide mobile home on the day Dreama died, detectives found that it was
cluttered with dirty dishes and baby bottles throughout the kitchen and clothes and other
items strewn about. They found evidence of drug use in the kitchen and master bedroom.

        Dr. Marianne Neal, a board-certified pediatric radiologist, further examined Dreama’s
postmortem x-rays. Her review revealed that Dreama had sustained a total of 14 broken
bones to include seven fractured ribs, bilateral femur fractures, bilateral tibia and fibula
fractures, a left radial fracture and an acute right ulnar fracture. The fractures were in a
healing stage, meaning they were more than seven days to ten days old, except for the broken
right forearm which showed no evidence of healing. Dr. Neal concluded that the leg
fractures were “consistent with a shaking injury”and “highly specific for non-accidental
trauma.” Similarly, the rib fractures were “very commonly seen in cases of non-accidental
trauma due to shaking, grasping the thorax while shaking.” Dr. Neal opined that the fractures
could not have been cause by Dreama herself or by the Child trying to lift her. A CT scan
further revealed split sutures to the skull that were a secondary sign of swelling in the brain
resulting from “an acute single incident” such as “strangulation, suffocation, lack of oxygen
to the brain.”2 With respect to the bruises across the infant’s lower back, buttocks, and
external labia, Dr. Neal noted that some were new and others fell within a range of being two
days to a week old. She concluded the injuries occurred during a “minimum” of two separate
incidents.

        In the evening hours after Dreama died, DCS removed the Child from the home and
agreed to Mother’s request that the Child be permitted to stay temporarily with Mother’s
father. A “no-contact” agreement prohibited Father from being around the Child. CPS
investigator Cathy Agnew accompanied the Child and Mother to the house of Mother’s
father, and Father arrived soon after them with clothing and other items for the Child.
Agnew noted that, although Mother was permitted to stay with the Child, she left with Father
for the night.

       An adjudicatory hearing was held on DCS’s petition in October 2009. In summary,
the juvenile court found, by clear and convincing evidence, that



        2
         The autopsy report is not in the record before us, however, at trial, counsel referred to it as stating
the cause of Dreama’s death as “suffocation as a result of co-sleeping.”

                                                      -3-
                the [C]hild . . . is dependent and neglected within the meaning
                of the law; that it is contrary to the [C]hild’s welfare to remain
                in the care, custody, or control of her parents; that it was not
                reasonable or in the [C]hild’s best interest to prevent removal;
                that [DCS] did not prove that either parent committed severe
                abuse as to [the Child], and that the State is not relieved from
                making reasonable efforts; . . . .

The juvenile court awarded temporary custody to DCS and further ordered continued
visitation with Mother and Father. The Child was subsequently removed from the home of
relatives and entered foster care.

       On DCS’s appeal, a trial de novo was held on May 27, 2010. Mother testified that she
worked eight to ten hour shifts of over forty hours a week. In the evenings, she cared for the
children by bathing, feeding and playing with them before bedtime. After Father had rolled
over onto Dreama two or three times, she moved the baby to the other side of the bed.
Mother stated she sent Father to the doctor’s office with Dreama and told Father to ask about
her leg. Father reported back that the doctor found nothing wrong. Questioned further,
Mother said it would not surprise her to learn that, according to the doctor, Father had never
asked him anything about Dreama’s leg; Mother agreed that either Father or the doctor was
lying. Asked whether she could tell when Dreama was crying in pain, Mother began crying
and replied “I thought she really (inaudible) was when I’d lift her leg to change her diaper.”
She acknowledged that she knew something was wrong with the infant’s leg and “knew that
she’d been bruising easily.” Mother admitted making statements to the effect that Father was
too rough with Dreama.3 When asked to explain her statement, Mother exercised her Fifth
Amendment privilege against self-incrimination. She agreed however, that she had
sometimes taken Dreama to her mother’s house when she thought Father might have been
too rough with the baby. Mother said she would do anything to regain custody of the Child.

        Carrie Marchant, an in-home parenting services provider, drove the Child back and
forth from her foster home for her therapeutic visitations at Marchant’s Blountville office.
On January 16, 2010, she was at the Child’s foster home working with her foster family when
the Child blurted out, “My daddy hit my sister, and I told him to stop, stop, stop.” Later that
month, Marchant was driving the Child back home from a therapeutic visit and a trip to
McDonald’s when the Child suddenly stated, “Carrie, Carrie, Carrie, my daddy hit Dreama,
and my mommy was upset.”



        3
          It is not clear to us when or to whom Mother admittedly made such a statement; it is not contained
in the recorded statements she made to Detective Pascue.

                                                    -4-
        Summer Seals, a long-time friend of Mother’s, often allowed her son to play with the
Child under Father’s supervision and had no concerns about Father. Seals had seen Dreama
three or four times and described her as a “normal, happy baby that just . . . laid there. . . .”
Seals once observed a small bruise or mark on Dreama’s face that did not concern her, but
she did ask Mother about it, who said she “wasn’t for sure how she got it,” but was worried
that the Child might have hurt Dreama while playing.

       At the close of the proof, both Mother and Father, through their separate counsel,
conceded that the Child was dependent and neglected pursuant to Tenn. Code Ann. § 37-1-
102(b)(12)(B)4 based on her being exposed to drugs and environmental neglect. With respect
to Mother, the trial court found, by clear and convincing evidence, that Mother committed
severe child abuse against Dreama by failing to protect her and that the Child, as a result of
the abuse Dreama suffered, was “severely abused” under the law. Based on its findings, the
court relieved DCS from making reasonable efforts to reunify the Child with Mother (and
Father)5 . Because of Mother’s disagreement with the trial court’s “reasonable efforts to
reunify” decision, she appealed.

                                                    II.

      Mother raises multiple issues for our review that we combine and restate them as
follows:

                  1. The evidence is insufficient to support the trial court’s
                  finding that Mother committed severe child abuse against the
                  Child’s sibling.

                  2. The trial court erred in finding that the Child was severely
                  abused by imputing to the Child the severe abuse sustained by
                  her sibling.




       4
          Tenn. Code Ann. § 37-1-102(b)(12)(B) provides that “ ‘Dependent and neglected child’ means a
child: . . . (B) Whose parent, . . . with whom the child lives, by reason of cruelty, mental incapacity,
immorality or depravity is unfit to properly care for such child;”
       5
           At the time of the trial, Father was incarcerated on charges of aggravated child abuse against
Dreama.

                                                    -5-
                                             III.

      This Court has addressed the standard of review in cases involving allegations of
dependency and neglect and severe child abuse as follows:

              Whether the ultimate issues of dependency and neglect or severe
              child abuse have been established by clear and convincing
              evidence are questions of law, which we review de novo with no
              presumption of correctness. To the extent the trial court made
              findings of fact in support of the ultimate issues, we review the
              factual findings pursuant to Tenn. R. App. P. 13(d), de novo
              with a presumption of correctness unless the evidence
              preponderates otherwise. Therefore, this court will review the
              trial court’s specific findings of fact in support of its ultimate
              conclusions de novo, pursuant to Tenn. R. App. P. 13(d), with
              a presumption of correctness; however, we will review those
              conclusions of law, that the parents engaged in severe child
              abuse and that the [child] [is] dependent and neglected, de novo
              with no presumption of correctness.

In re H.L.F., 297 S.W.3d 223, 233-34 (Tenn. Ct. App. 2009).

                                             IV.

       At trial, Mother conceded that the Child was dependent and neglected under Tenn.
Code Ann. § 37-1-102(b)(12). On this appeal, she does not contest the sufficiency of the
evidence in this regard. Instead, Mother focuses on the findings of the trial court of severe
abuse to both of her children – findings that meant DCS is absolved of the obligation to make
reasonable efforts to reunify the Child with Mother.

       Mother first challenges the trial court’s finding that she committed severe abuse
against Dreama. Tenn. Code Ann. § 37-1-102(b)(23)(A) defines “severe child abuse” in
relevant part, as follows:

              The 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 and the knowing use of force on a child
              that is likely to cause great bodily harm or death;




                                              -6-
        This court has elaborated upon the “knowing” element of the “severe abuse”
definition as applied in dependent and neglected cases and other proceedings involving
juveniles. In In re H.L.F., 223 S.W.3d at 235-36, we stated:

              [P]arents have a duty to provide, and children have a
              corresponding right to be provided with, a safe environment,
              free from abuse and neglect. Accordingly, a parent who has not
              directly abused her own child may still be found to have
              committed severe child abuse if she “knowingly exposed the
              child to, or knowingly failed to protect the child from, conduct
              constituting severe child abuse.”

              “Knowing” and “knowingly” are not defined in Tenn. Code
              Ann. § 37-1-102, or in any other statute pertaining to
              dependency and neglect proceedings to terminate parental rights
              or in other civil proceedings involving juveniles. The words
              “knowing” and “knowingly” do not have fixed or uniform
              meanings, and their meanings vary depending on the context in
              which they are used or the character of the conduct at issue.

              A parent who is present when a child is abused but who fails to
              intervene to protect the child has knowingly exposed the child
              to, or has failed to protect the child from, abuse. The “knowing”
              requirement in Tenn. Code Ann. § 37-1-102(b)(21), [now
              contained in subsection (23)], however, is not limited to parents
              who are present when severe abuse actually occurs. A parent’s
              failure to protect a child will also be considered “knowing” if
              the parent had been presented with sufficient facts from which
              he or she could have and should have recognized that severe
              child abuse had occurred or that it was highly probable that
              severe child abuse would occur. Accordingly, a parent’s conduct
              is knowing, and a parent acts or fails to act “knowingly,” when
              . . . she has actual knowledge of the relevant facts and
              circumstances or when . . . she is either in deliberate ignorance
              of or in reckless disregard of the information that has been
              presented to . . . her.

(Internal citations omitted).




                                             -7-
       Returning to the present case, the trial court made detailed findings of fact regarding
the abuse against Dreama. We quote extensively from its opinion:

              [Father] caused the . . . multiple fractures, bruises and cerebral
              edema which resulted in suffering by [Mother’s and Father’s]
              child, Dreama . . ., as a result of severe child abuse as defined in
              T.C.A. § 37-1-102(b)(23)(A).

              [Mother] was aware of fingerprint like bruises on Dreama’s ribs
              for the period of two months to two weeks prior to the child’s
              demise; took the child on occasion to her mother’s due to the
              bruises on Dreama; “stayed up” on the fingerprint bruises on
              Dreama as she acknowledged that [Father] was a strong man;
              noticed the baby Dreama had blood on her nose after Easter
              preceding her demise; was aware that something was wrong
              with Dreama’s leg as she cried when lifting the leg; allowed
              Dreama to sleep between her and [Father] and was aware that
              two to three times [Father] had rolled over on the child, causing
              a danger to the baby and only then relocated the child to another
              part of the bed; used marijuana or other drugs on an almost daily
              basis and was aware that [Father] who was the primary caretaker
              used marijuana or other drugs on a daily basis.

              [The Child] on January 16, 2010, reported to a parenting
              instructor that she had told [Father] to stop hitting her sister and
              told him to “stop, stop, stop,” and later that month stated to the
              parenting instructor that [Father] hit Dreama and that her
              mommy got upset.

              [Mother], mother of Dreama and [the Child], failed to protect
              Dreama [ ] from abuse and neglect likely to cause great bodily
              harm within the meaning of T.C.A. § 37-1-102(b)(23)(A). A
              parent who knowingly permits severe abuse is as culpable as a
              person who inflicts such abuse. Reasonable efforts of the type
              described in T.C.A. § 37-1-166(g)(1) are not required to be
              made where a parent has subjected [the Child] to “aggravated
              circumstances” as defined in T.C.A. § 36-1-102(9). Although
              [Mother] was not always present when severe abuse occurred,
              her failure to protect a child is “knowing” when there are
              sufficient facts from which the children’s mother could have and

                                              -8-
              should have recognized that severe abuse by her husband had
              occurred or that it was highly probable that severe abuse would
              occur.

              The Court finds by clear and convincing evidence that [the
              Child] is severely abused by [Mother and Father] within the
              meaning of the law; that [Mother] knowingly failed to protect
              the infant sibling of the [C]hild subject to this petition; that
              [Mother] has sufficient evidence that severe abuse had occurred
              or was highly probable to occur to Dreama, . . . ; that it is
              contrary to the [C]hild’s welfare to be returned to the care,
              custody or control of her parents; that [DCS] has proven that
              both parents committed severe abuse as to the [C]hild; and that
              the State is relieved from making reasonable efforts to reunite
              the [C]hild with [Mother and Father]. . . .

        Mother insists that she did not knowingly fail to protect Dreama from the severe abuse
inflicted upon her. She emphasizes that, only weeks before the infant died, “[Mother] took
[Dreama] to the pediatrician’s office on April 1, 2009 for a physical examination,”and the
pediatrician found “nothing wrong.” She further points to testimony by Dr. Neal that
Dreama’s injuries may not have been readily apparent to an observer and would not
necessarily have included visible signs that the child was in pain, such as crying, unless she
was moved a certain way. Mother insists that the evidence at trial failed to show that she
knew or should have known that Dreama was being abused or that she deliberately or
recklessly chose to ignore signs which should have led her to this conclusion. We think the
evidence shows otherwise.

      Perhaps most damaging to Mother’s position – that her failure to take protective action
on Dreama’s behalf was not “knowing”– are certain admissions Mother made in her
statements to Detective Pascue in the hours just after Dreama’s death. We recite portions of
Mother’s statements as follows:

              4/23/09
              15:30

              As far as I know [Dreama] has never been hurt in any way. God
              No. I have no idea[.] I can’t understand how my baby was alive
              yesterday and dead today[.]




                                             -9-
4/23/09
16:00

One time I took the baby to the doctor because her legs were
hurting two months ago, she had bruises on her ribs two months
ago. No one has been around the baby besides my mom that
was about two weeks ago, [Father] was sick and mom took care
of the baby. I started taking the baby to my mom[’]s house.
because Dreama always wanted to be held. that just lasted about
a week. [Father] said he didn’t know how Dreama got bruises on
her ribs, I saw them I saw finger print like bruises on her ribs
and the sides. that . . . one time . . . was the only one time I’ve
seen bruises two weeks ago. I’ve never seen [Father] get made
at Dreama.

                            *    *     *

Me and my husband got busted for a Meth lab. We use
marijuana, both of us. [Father] would never do anything to the
kids, [Father] is a good dad.

4/23/09
16:45

I have noticed bruises on [Dreama] and I’ve been raising Hell
with [Father] because I’ve been staying up on it. To make sure
there were no bruises I had taken her to my moms to help
[Father] because I figured if she was getting hurt that [Father]
didn’t need to have them both. [Father] carries her around[.]
[Father is] a strong man and I didn’t think he would hurt
Dreama by carrying her around.

4/23/09
19:20

There is no way for me to give you specific dates but it was
around Easter, right after Easter. Dreama had blood on her
nose. I came home and asked [Father] what happened and he
said he went to the bathroom and [the Child] was in the living



                                -10-
              room with Dreama(,) standing over her. [The Child] tries to get
              sissie’s buggers.

        Turning to the medical evidence, Dr. Andrew Brockmyre, Dreama’s pediatrician,
attended to her since her birth. He last saw her when Father brought her to his office on
April 1, 2009, and he performed a “complete head to toe physical.” More specifically, he
checked Dreama’s head, eyes, ears, throat, collar bones, heart, lungs, abdomen, hips and skin
and found no abnormalities or bruises. Dr. Brockmyre stated that Father did not ask him to
check for any problem with Dreama’s legs. Dr. Brockmyre was “pretty certain” he would
have detected fractures of the type present at Dreama’s death if they were present on her
April 1 visit. In particular, the leg fractures would have been “most obvious” because in
checking her hips, “you’d have to grab the baby in the legs, and kind of test their hip joints,
and it would have been pretty obvious if there was a problem there . . . , if there was a
fracture . . . it, not only would the exam have been abnormal, but . . . it would have been very
painful for her.” Moreover, there might have been bruising and abnormal sounds in the lungs
as a result of the broken ribs. Dr. Brockmyre concluded, to a reasonable degree of medical
certainty, that the fractures would have been detected and still painful to Dreama even if they
had begun to heal at the time of his April 1 examination.

       Next, Dr. Neal stated that a child with Dreama’s injuries may or may not have
significant outward signs of injury such as crying or bruising “as long as the patient is quiet
and not moving those extremities.” She concluded it was possible for a child to have such
injuries and it not be apparent to an observer. Dr. Neal further testified, however, that “even
an individual fracture would cause pain if the extremity were moved, or the ribs were
touched.”

       Dr. Chumbley concluded that Dreama would have suffered from her rib fractures
because, in his opinion, anything that “expands or contracts or touches that chest wall is
going to cause excruciating pain.” He added that “simply rolling over on a child, that’s not
enough force to break these ribs.” He concluded that these were “injuries inflicted on this
child” that would have been extremely painful to her – “excruciating to say the least.”

       Considering the evidence in its entirety, it is possible all of the injuries Dreama
sustained may not have been present when Father took Dreama for a physical three weeks
before she died. At some point, however, while Mother cared for Dreama every night,
bathed her, changed her diapers, held and played with her, the injuries were present. She
noticed bruises on the baby and heard her cry out in pain when her leg was moved and
suspected “something was wrong” with her. Moreover, Mother professed that she had been
staying up on the situation about the bruises, “raising Hell” with Father and had questioned
him about them. A few times she had even taken Dreama to her mother’s because she felt

                                              -11-
that Father was too rough with her. On most days, however, Mother went to work and left
Father to care for the baby despite her unexplained concerns. When asked to explain why
she thought Father may have been “too rough” with Dreama, Mother invoked her right
against self-incrimination when asked to explain what “too rough” meant.

         Armed with signs that Dreama was getting hurt while in Father’s care and was in pain,
the only action Mother took was to send Dreama to the doctor’s office with Father with
instructions that Father ask about her leg. When Father returned and reported the doctor
found “nothing wrong” with Dreama, Mother accepted his assertion despite her admission
at trial that she would not be surprised to learn that, according to the doctor, Father had never
asked about Dreama’s leg. No less significant, Mother admitted to seeing “finger print [sic]
like bruises” on the baby’s sides but aside from questioning Father, did nothing with this
information. Lastly, the Child reported witnessing Father hitting Dreama and said Mother
was upset about it.

       In summary, the evidence does not preponderate against the trial court’s finding that
Mother had sufficient information that severe abuse to Dreama had occurred or would occur
but knowingly failed to take appropriate action to protect her. The trial court did not err in
its conclusion that Mother thereby committed severe child abuse against Dreama.

                                               V.

         Mother asserts that the trial court further erred in finding that the Child was severely
abused by imputing to her the abuse committed against Dreama. As quoted earlier in this
opinion, the trial court found that “both parents committed severe abuse as to [the Child. . . .”
Upon our review of the evidence, we agree with Mother’s position. There was no evidence
at trial even remotely suggesting that the Child herself was subjected to direct abuse of any
kind. We think it is clear from the trial court’s opinion that it found the Child was subjected
to “severe abuse” based on the injuries inflicted on Dreama and the fact that, by the Child’s
own account, the Child actually witnessed Father abusing her sister.

       In response to Mother’s argument, the State essentially concedes error by the trial
court. Counsel for DCS states:

              The Department is unaware of any statute or statutory definition
              in a dependency and neglect proceeding that permits the trial
              court to declare a child severely abused solely based on a court’s
              finding that the child’s sibling was severely abused. There is no
              evidence that [the Child] herself suffered severe child abuse.



                                              -12-
              Thus, this brief will not defend the trial court’s finding that [the
              Child] suffered severe child abuse.

        Following our independent research, we agree with DCS’s position that there is no
statutory authority that would allow a child who was not subjected to conduct constituting
“severe child abuse” to be deemed a severely abused child based on abuse perpetrated against
a sibling. We must conclude that the trial court erred in its factual conclusion that the Child
“is severely abused by [Mother and Father] within the meaning of the law. . . .” For this
reason, we modify the law court’s opinion so as to affirm its finding of severe child abuse
by Mother only as to Dreama; the finding of severe abuse by Mother as to the Child is not
supported by the evidence and is hereby rejected. Based on the foregoing, we conclude that
DCS correctly concedes this issue.

        Our disposition of this issue notwithstanding, we take this opportunity to point out that
the trial court’s order relieving DCS of any efforts to reunify the Child with Mother remains
unchanged. The following statutes are relevant in this regard:

Tenn. Code Ann. Sec. 37-1-166 provides, in relevant part, as follows:

              (a) At any proceeding of a juvenile court, prior to ordering a
              child committed to or retained within the custody of the
              department of children’s services, the court shall first determine
              whether reasonable efforts have been made to:

              (1) Prevent the need for removal of the child from such child's
              family; or

              (2) Make it possible for the child to return home.

                                           *    *     *

              (g) (1) As used in this section, “reasonable efforts” means the
              exercise of reasonable care and diligence by the department to
              provide services related to meeting the needs of the child and the
              family. In determining reasonable efforts to be made with
              respect to a child, as described in this subdivision (g)(1), and in
              making such reasonable efforts, the child’s health and safety
              shall be the paramount concern.




                                               -13-
             (2) Except as provided in subdivision (g)(4), reasonable efforts
             shall be made to preserve and reunify families:

             (A) Prior to the placement of a child in foster care, to prevent or
             eliminate the need for removing the child from the child's home;
             and

             (B) To make it possible for a child to safely return to the child's
             home.

                                         *    *     *

             (4) Reasonable efforts of the type described in subdivision (g)(2)
             shall not be required to be made with respect to a parent of a
             child if a court of competent jurisdiction has determined that:

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

(Emphasis added).

      Section 36-1-102(9), referenced above, defines “aggravating circumstances” as
follows:

             “Aggravated circumstances” means abandonment, abandonment
             of an infant, aggravated assault, aggravated kidnapping,
             especially aggravated kidnapping, aggravated child abuse and
             neglect, aggravated sexual exploitation of a minor, especially
             aggravated sexual exploitation of a minor, aggravated rape, rape,
             rape of a child, incest, or severe child abuse, as defined at §
             37-1-102;

Tenn. Code Ann. § 36-1-102(9) (emphasis added).

        As can be seen, Mother’s severe abuse of the Child’s sibling, i.e., her “knowing
failure to protect” the sibling, is an “aggravating circumstance” that relieves DCS of its
obligation to work toward reunifying the Child with Mother.

                                             -14-
                                             VI.

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




                                                    _________________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




                                             -15-
