                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  December 10, 2012 Session

                                IN RE DEVONTA L.C. ET AL.

                     Appeal from the Juvenile Court for Knox County
                             No. 96929    Tim Irwin, Judge


               No. E2012-00678-COA-R3-PT-FILED-JANUARY 31, 2013


This is a termination of parental rights case focusing on three minor children (“the
Children”). The defendants are Russell C. (“Father”) and Brandy C. (“Mother”).1 The
Children were taken into custody by the Department of Children’s Services (“DCS”) in
January 2008 because of repeated injuries sustained by the oldest child. DCS filed a petition
to terminate the parental rights of both parents in April 2010, alleging numerous grounds for
termination. Following a bench trial, the court granted the petition after finding, by clear and
convincing evidence, that Father and Mother were in substantial noncompliance with the
permanency plans and that the conditions leading to removal still persisted. However, the
trial court found that severe child abuse was not proven. The court did find, by clear and
convincing evidence, that termination is in the Children’s best interest. Father and Mother
appeal. We reverse in part and affirm in part. Termination of the parents’ parental rights is
affirmed.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
               Reversed in Part and Affirmed in Part; 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.

Ben H. Houston, II, Knoxville, Tennessee, for the appellant, Russell C.

Joshua Hedrick, Knoxville, Tennessee, for the appellant, Brandy C.




       1
          Brandy C. is not the “biological” mother of the oldest child, Devonta L.C. When the Children
were taken into custody, she was his stepmother and was living in the home with Father and the Children.
Brandy C. is the biological mother of the two younger children.
Robert E. Cooper, Jr., Attorney General and Reporter, and Martha A. Campbell, Deputy
Attorney General, Office of the Attorney General, Nashville, Tennessee, for the appellee,
Tennessee Department of Children’s Services.

                                          OPINION

                                               I.

       The Children are Devonta L.C. (DOB: March 14, 1998), Nakila A.M.C. (DOB:
October 23, 2002), and Tavius E.C. (DOB: March 29, 2004). DCS first became involved
with the Children in December 2007 when teachers and others at Devonta’s school noticed
that he had a strange pattern of bruising on his back and other marks/bruises. Numerous
teachers, the school nurse, and the school’s “Project Grad” campus manager reported that
Devonta frequently came to school with marks/bruises, was often dirty and hungry, and
usually slept through most of the morning. In December 2007, Devonta got in trouble at
school and was suspended. Devonta reacted tearfully, telling the campus manager that if they
sent him home, Father would beat him.

       When Devonta returned to school, he complained that his back hurt. Personnel there
noticed that Devonta had several circle-shaped marks on his back that looked like bruises or
burns and a “knot” on his head. Devonta was seen by a nurse, and the Knoxville Police
Department and DCS were notified.

        The DCS worker who investigated the abuse allegations noted that the circular bruises
on Devonta’s back were aligned in a pattern, and also that Devonta had a greenish-colored
bump on his head, a large healing wound on his hand, a swollen ear, and scratch marks. She
testified that Devonta first told her he got into a fight on the playground, but later, following
further questioning, he said that Father had hit him with a belt. Devonta described a white
belt with metal grommets and drew a picture of it. The worker stated that Devonta was very
nervous and reluctant to talk, stating that Father told him not to mention the incident.
Devonta also stated that Father was trying to “toughen him up,” and that he, Devonta,
deserved to be punished because he tried to set the house on fire.

       The DCS worker went to the home and talked to the parents. Father admitted that he
sometimes whipped Devonta with the belt he was wearing. It was a plain, leather belt. The
DCS worker asked for consent to search the home, and found a white belt with metal
grommets hidden in the laundry room that matched the one described by Devonta. The
parents were interviewed separately, and Father said he had never seen the belt before.
Mother admitted it was her belt, but denied using it to hit Devonta. Father then volunteered



                                               -2-
that Mother called him at work a few days before the DCS interview and said she had given
Devonta a whipping with a belt.

        Devonta was taken to the hospital to have his injuries assessed. While there, his
paternal grandmother came to see him and helped him get dressed. She asked him about the
marks on his back and Devonta shouted, “Brandy did it.” Devonta and his siblings were sent
to stay with the paternal grandparents for a few days, and then returned home with an
Intensive Family Protective Services worker in place. The DCS worker reported that the
conditions in the home were deplorable, as there was garbage and dirty dishes “everywhere,”
roaches running about, food smeared on the floor, and so much dirty laundry that the floor
of the bedroom was not visible. A few weeks later, on January 8, 2008, the school again
called DCS to report that Devonta came in with a large knot on his head. Devonta reported
that one of his parents shoved his head into a wall. The Children were taken into custody at
that time.

       The Children were placed in foster care and permanency plans were developed for
each with both parents. The permanency plans required Father and Mother to follow the
court’s orders and attend all hearings, attend team meetings and school meetings, meet with
DCS on a regular basis, allow home visits, and pay child support. The parents also were
required to demonstrate appropriate parenting skills and to learn how to appropriately
discipline children. They were also directed to cooperate with the service providers. Father
and Mother were further required to: participate in therapy, both individually and as a
couple; maintain a clean, safe home free of domestic violence; and visit the Children. Later
permanency plans added the requirements that the parents participate in group therapy;
understand the effects of abuse on the Children and prevent further abuse; undergo an
alcohol/drug assessment and follow all recommendations; and obtain psychological
evaluations and carry through with any recommendations.

        On April 14, 2010, DCS filed a petition to terminate the parental rights of Father and
Mother. DCS asserted that the parents had committed severe child abuse, that they were in
substantial noncompliance with the permanency plans, and that the conditions leading to
removal still persisted. DCS also alleged that termination was in the Children’s best interest.
A trial on the petition was held over a number of days. At the close of DCS’s proof, the
court dismissed the severe abuse allegation. At the end of the trial, the court ruled that DCS
had proven, by clear and convincing evidence, that both Father and Mother were in
substantial noncompliance with the permanency plans, and that the conditions leading to
removal still persisted. The court also found, by clear and convincing evidence, that
termination was in the Children’s best interest. Father and Mother filed timely appeals.




                                              -3-
                                             II.

       The parents present the following issues for our review:

              1. Whether the trial court erred in finding persistent conditions
              as a basis for termination where DCS failed to enter a copy of
              the adjudicatory order from the dependency and neglect
              proceedings into evidence.

              2. Whether the trial court erred in terminating the parental
              rights of Father and Mother when the evidence demonstrated
              that DCS failed to make reasonable efforts to reunify the
              Children with the parents.

              3. Whether the trial court erred in terminating the parental
              rights of Father and Mother when DCS failed to prove
              persistence of conditions by clear and convincing evidence.

              4. Whether the trial court erred in terminating the parental
              rights of Father and Mother when DCS failed to prove
              substantial noncompliance by clear and convincing evidence.

              5. Whether the trial court erred by finding that termination was
              in the Children’s best interest.

DCS asserts its own issue, i.e., whether the trial court erred when it dismissed the severe
abuse ground.

                                            III.

        In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). 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). Great weight is accorded the trial court’s
determinations of witness credibility, which shall not be disturbed absent clear and
convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).



                                             -4-
Questions of law are reviewed de novo with no presumption of correctness. Langschmidt
v. Langschmidt, 81 S.W.3d 741 (Tenn. 2002).

       As this Court has stated:

              It is well established that parents have a fundamental right to the
              care, custody, and control of their children. While parental
              rights are superior to the claims of other persons and the
              government, they are not absolute, and they may be terminated
              upon appropriate statutory grounds. A parent’s rights may be
              terminated only upon “(1) [a] finding by the court by clear and
              convincing evidence that the grounds for termination of parental
              or guardianship rights have been established; and (2) [t]hat
              termination of the parent’s or guardian’s rights is in the best
              interest[] of the child.” Both of these elements must be
              established by clear and convincing evidence. Evidence
              satisfying the clear and convincing evidence standard establishes
              that the truth of the facts asserted is highly probable, and
              eliminates any serious or substantial doubt about the correctness
              of the conclusions drawn from the evidence.

In re Angelica S., E2011-00517-COA-R3-PT, 2011 WL 4553233 (Tenn. Ct. App. E.S., filed
Oct. 4, 2011)(citations omitted).

                                              IV.

                                              A.

        We elect to address the issue of severe child abuse first. DCS argues that the court
erred in dismissing the ground of severe child abuse because, in the judgment of DCS, there
was overwhelming proof that the Children had been subjected to abuse/neglect while in the
parents’ custody, abuse that was likely to cause serious bodily injury or death. DCS also
argues that the Children were subjected to abuse/neglect that, in the opinion of qualified
experts, had caused severe developmental delay or retardation, or severe impairment of the
Children’s ability to function adequately.

        At the close of DCS’s proof, the parents’ separate attorneys made oral motions asking
the court to dismiss the severe child abuse allegations. The trial court reviewed Tenn. Code
Ann. §37-1-102 (Supp. 2012), and the definition of severe child abuse contained in that
statute. The trial court then stated that the only specific act of abuse that was proven was the

                                              -5-
“improper whipping” by Mother, and that this was not sufficient to rise to the level of severe
child abuse. The court noted that there was doubt in its mind as to the cause of the injuries
shown. Because of this doubt, the court refused to terminate on the severe child abuse
allegation.

                                              B.

       Tenn. Code Ann. §37-1-102(b)(23) defines “severe child abuse” as:

              (A)(i) The knowing exposure of a child to or the knowing
              failure to protect a child from abuse or neglect that is likely to
              cause serious bodily injury or death and the knowing use of
              force on a child that is likely to cause serious bodily injury or
              death;

              (ii) “Serious bodily injury” shall have the same meaning given
              in §39-15-402(d).

              (B) Specific brutality, abuse or neglect towards a child that in
              the opinion of qualified experts has caused or will reasonably be
              expected to produce severe psychosis, severe neurotic disorder,
              severe depression, severe developmental delay or intellectual
              disability, or severe impairment of the child’s ability to function
              adequately in the child’s environment, and the knowing failure
              to protect a child from such conduct.

Tenn. Code Ann. §39-15-402(d) (Supp. 2012) defines “serious bodily injury to the child”:

              includes, but is not limited to, second- or third-degree burns, a
              fracture of any bone, a concussion, subdural or subarachnoid
              bleeding, retinal hemorrhage, cerebral edema, brain contusion,
              injuries to the skin that involve severe bruising or the likelihood
              of permanent or protracted disfigurement, including those
              sustained by whipping children with objects.

        The trial court apparently believed that the wording of these statutes did not allow it
to find severe child abuse based on circumstantial evidence, and that without direct proof that
the parents committed specific acts of abuse which caused the damage shown, severe child
abuse could not be found. This approach fails to recognize that decisions from this Court
have found severe child abuse based not on specific, proven acts of abuse, but rather on the

                                              -6-
“combined weight of the facts.” See In re S.J., No. W2011-01690-COA-R3-JV, 2012 WL
3228729, *15 (Tenn. Ct. App. W.S., filed Aug. 9, 2012).

       In the case of In re S.J., the parents were alleged to have committed severe child
abuse because their daughter had suffered skull fractures with no reasonable explanation, and
then their infant son had suffered unexplained rib fractures, a severe fracture of the femur
shortly thereafter, and had also been diagnosed as failing to thrive. In re S.J., 2012 WL
3228729 at *1-3. The parents denied being the perpetrators of any abuse. The parents stated
that their daughter (who was three months old at the time) had fallen off the couch. The
medical providers found this explanation suspicious, since the child had fractures on both
sides of her head, a contusion, and bleeding on her brain. Id.

        About one year later, the parents in In re S.J. had a son, and he was diagnosed at age
four months as failing to thrive as he was severely underweight. The pediatrician who
examined the infant at the hospital also discovered numerous broken ribs in various stages
of healing. The parents had no explanation for the fractures, and an investigation was opened
by DCS. Approximately one month later, while the investigation was still pending, the infant
son was transported to the hospital and diagnosed with an acute femur fracture. Mother
explained that the child’s leg had gotten caught in the crib slats and that she had pulled his
leg out. The pediatrician found this explanation to be questionable, and the children were
taken into DCS custody. Id. At trial, the mother testified that she had discovered she had
been mixing the infant’s formula incorrectly, and that this was the reason for his
malnutrition. She testified that she did not know how his ribs got fractured, but thought
perhaps it occurred during childbirth or when someone picked him up. She repeated her
story about the child’s leg being caught in the crib slats as an explanation for the femur
fracture. Id. at *3. The treating pediatrician testified that the child weighed only nine
pounds at four months of age, and was below the third percentile for weight. She testified
that tests were performed and no medical reason was found for the child’s failure to gain
weight. The pediatrician testified that the child gained weight very well during his
hospitalization. The pediatrician went on to explain that such malnourishment could affect
brain development and lead to serious cognitive delays. Id. at *4. Regarding the rib
fractures, the pediatrician testified that there were six separate fractures, and that they were
in different stages of healing at the time of examination. The pediatrician testified that there
was “no way” that the child could have inflicted these injuries on himself, and that they had
to be the result of non-accidental trauma. She elaborated that the type and location of the
fractures indicated someone had squeezed the baby “really hard, front to back. . ..” Id. at *5.
Finally, the pediatrician testified that the leg fracture was “really significant” because it
occurred at a high point, near the upper end of the femur, rather than in the middle of the
femur at its weakest point. Id. at *7. The pediatrician noted that a high fracture of this type
was normally indicative of abuse or non-accidental trauma. The pediatrician stated that it

                                              -7-
was “always a possibility” that the fracture occurred in the manner mother described, but that
it was very unlikely. Id. at *11.

       The trial court declined to find severe child abuse in that case, and DCS appealed.
This Court reviewed the definition of severe child abuse contained in the statute, and began
our analysis by stating:

              This case presents a textbook example of the confluence of
              circumstances that are presented with unfortunate regularity in
              cases of alleged child abuse. A preverbal infant or child sustains
              serious injuries, the only witnesses to the injuries are the parents
              or caregivers who maintain that the injuries result from an
              innocent misunderstanding or inexplicable mystery, and
              testimony by medical personnel whose role is to opine as to the
              most likely cause of the child’s injuries, not to identify the
              perpetrator. We will analyze the proof in this case, applying the
              clear and convincing evidence standard to the statutory
              definition of “severe child abuse.” As explained below, the
              evidence in this record clearly and convincingly shows severe
              child abuse of infant J.J.

              Under the clear and convincing evidence standard, it is
              important to “distinguish between the specific facts found by the
              trial court and the combined weight of those facts.” Each
              specific underlying fact need only be established by a
              preponderance of the evidence. Such specific underlying facts
              include whether a particular injury suffered by the child was the
              result of nonaccidental trauma, and whether the caregiver’s
              conduct with respect to the injury was “knowing.” Once these
              specific underlying facts are established by a preponderance of
              the evidence, the court must step back to look at the combined
              weight of all of those facts, to see if they clearly and
              convincingly show severe child abuse.

              It is also important to understand the threshold for finding that
              a parent or caregiver’s conduct was “knowing.” In child abuse
              cases, the parent or caregiver may deny that the injury was
              purposefully inflicted, and where the injuries are inflicted on
              preverbal infants and children, there is often no witness to the
              injury other than the parent or caregiver. The “knowing”

                                              -8-
              element can and often must be gleaned from circumstantial
              evidence, including but not limited to, medical expert testimony
              on the likelihood that the injury occurred in the manner
              described by the parent or caregiver. Moreover, “knowing”
              conduct by a parent or caregiver is not limited to conduct
              intended to cause injury:

                      The term “knowing” as used in Section
                      37–1–102(b)(23) is not defined by statute. . .. In
                      the context of the dependency and neglect
                      statutes, the term has been described as follows:

                             We consider a person’s conduct to
                             be “knowing,” and a person to act
                             or fail to act “knowingly,” when he
                             or she has actual knowledge of the
                             relevant facts and circumstances or
                             when he or she is either in
                             deliberate ignorance of or in
                             r e c k l e s s d i s r e g a r d o f th e
                             information that has been presented
                             to him or her.

In re S.J., 2012 WL 3228729 at *12-13 (citations omitted).

        This Court went on to analyze the evidence, noting that the pediatrician had testified
that the parents’ explanations for the child’s injuries were improbable, and that the injuries
sustained by the child were most likely caused by non-accidental trauma. The Court thus
found that the evidence supported a finding that the mother either knowingly inflicted the
injuries or knowingly failed to protect him from them. Similarly, the Court found that the
mother’s explanation for the child’s malnourishment was unlikely, given the fact that she had
two older children and was thus an “experienced parent” who had not shown any indication
that she suffered from an intellectual impairment. The Court thus found that mother had
knowingly neglected to meet the child’s nutritional needs, and that this neglect was likely to
cause serious bodily injury. Id. at *14. While observing that the trial court’s findings of
credibility were entitled to deference on appeal, this Court noted that the trial court declined
to credit the mother’s excuses for the child’s condition, and instead credited the testimony
of the medical expert. The trial court apparently based its ruling declining to find severe
abuse on the fact that the medical expert testified that it was “possible” that the femur
fracture occurred in the manner described by Mother, even though it was unlikely. This

                                                -9-
Court explained, “This portion of Dr. Lakin’s testimony is noteworthy, but does not preclude
a factual finding that J.J.’s femur fracture did not occur in the way Mother described.” Id.
at *15. This Court adduced that “the expert testimony need not exclude every other
conceivable possibility.” Id. After considering the “combined weight of the facts” on the
issue of whether they “establish clearly and convincingly that the parent committed severe
child abuse,” this Court found that they did, even in the absence of an admission by the
parents or direct evidence. Id. at *16. Based on this finding, the Court reversed the trial
court on the severe abuse issue.

        Similarly, in the case of In re M.O., 173 S.W.3d 13 (Tenn. Ct. App. 2005), the child’s
father was accused of severe child abuse, conduct he denied. The trial court disagreed and
terminated the father’s parental rights. The father appealed to this Court, arguing that the
clear and convincing burden of proof could not be satisfied by circumstantial evidence. Id.
at 19. This Court disagreed with that assertion, explaining that “the law does not distinguish
between direct evidence and circumstantial evidence as far as probative value is concerned.”
Id. at 20. We went on to state that any material fact could be proven by either direct or
circumstantial evidence, and that in certain instances, circumstantial evidence could be more
convincing than direct evidence. Id.

        This Court discussed the evidence of abuse in that case, stating that it was largely
circumstantial, but that this was not surprising, as “abusive acts are rarely performed in
public” and because abusers “rarely confess their guilt.” Id. The Court reviewed the proof
presented, as follows: six DCS employees and the foster mother recounted the child’s
statements that her father and his brothers abused her; the father made inconsistent statements
about what happened; experts opined that the child had been sexually abused; the child acted
out sexually following visits with father; the child had knowledge of sexual acts far beyond
the knowledge of most children her age; and other facts. This Court determined that the only
reasonable conclusion to be drawn from this proof was that there was clear and convincing
evidence that father committed severe child abuse, either by engaging in sexual abuse himself
and/or failing to protect the child from sexual abuse by his brothers. This Court affirmed the
trial court’s finding that there was clear and convincing evidence of severe child abuse.

        In another case where the trial court found, largely in the absence of direct evidence,
that the parent had committed severe child abuse, the mother argued that the trial court erred
in holding that there was clear and convincing evidence to support this finding. In re
Malichi C., E2009-00055-COA-R3-PT, 2009 WL 3270178 (Tenn. Ct. App. E.S., filed Oct.
13, 2009). The proof consisted of the testimony of the foster parents and other witnesses that
the child, who was about three years of age, sexually stimulated himself by rubbing his
genitals against objects on a fairly regular basis. The witnesses also testified that the child
would try to fondle women’s breasts, and would try to kiss women on the mouth. The foster

                                             -10-
parents testified that when the child was being bathed, he touched his genitals constantly, and
that he also committed a sex act with a life-sized Superman doll. The foster father testified
that the child told him that the child’s mother put her finger in his anus, and that the foster
father also had caught the child’s mother engaged in sexual intercourse with a man while the
child was in the room. 2009 WL 3270178, at *2-3. The child’s therapist testified that she
had diagnosed the child with PTSD 2 and sexual abuse. She testified that her diagnosis was
based on the child’s exhibited anger, flashbacks, unrealistic fears, compulsive behavior,
violent tendencies, and compulsive masturbation. The therapist also testified that the child
told her that his mother had stuck her finger in his bottom. The child’s mother denied all
allegations of abuse and explained that the child would make up lies when he wanted
attention. Mother denied that the foster father caught her having sex with the child in the
room and insisted instead that she and the young man were just kissing. The trial court
found that there was clear and convincing evidence of severe child abuse and terminated
mother’s parental rights. Id. at *5.

       On appeal, mother argued that the diagnosis of PTSD was erroneously used as a basis
for finding severe child abuse when it could have been caused by something other than
abuse. She also argued that the testimony about the child acting out sexually was not linked
to anything she had done, and further that the child’s symptoms could have been caused by
something done to him by the babysitter. This Court disagreed, finding that “the trial
testimony . . . clearly paints a picture of a troubled boy who is sexually compulsive, fearful,
apprehensive, and sometimes violent” and “this court is convinced that the child was a victim
of severe child abuse that impairs his ability to function.” Id. at *12. The Court based its
finding on the “combined weight of the facts” and affirmed the termination of mother’s
parental rights. Id. at *13.

                                               C.

        Likewise, in this case, by looking at the combined weight of the facts, it is evident that
the trial court erred in failing to find that there was clear and convincing evidence of severe
child abuse. A plethora of witnesses from Devonta’s school testified regarding his condition.
They described common, weekly bruising, the fact that he regularly came to school late and
was hungry and dirty, the fact that he often wore the same clothes for days in a row, and the
fact that he slept in class (even standing up) and could not interact normally with his peers.
One teacher stated that she had never seen another child with as many marks/bruises as
Devonta exhibited. When Devonta was suspended for acting out, a witness testified that he
cried and begged them not to send him home or Father would “beat him.” Devonta then
returned to school after the suspension with suspicious circular marks on his back and other

       2
           Post Traumatic Stress Disorder.

                                              -11-
injuries, which were determined by medical experts to be the result of non-accidental trauma.
Devonta identified that he was whipped with a belt with metal grommets and described the
belt in great detail. The exact belt was found at his home.

       Devonta returned home with intensive in-home services, but came to school a few
weeks later with another large bruise and knot on his head. Devonta reported that his parents
had slammed his head into a wall, and that this was the cause of his injury. At this point, the
Children were taken into custody. The first foster parents reported that the Children were
happy to be at their home, and Devonta asked if the bathtub was clean so he could take a
bath. The foster parents testified that the Children were dirty, had dirty underwear, and
smelled bad. Nakila was reported to have a large bruise on her head as well.

       While in foster care, the Children consistently reported having been abused by Father
and Mother. Devonta reported being beaten, choked, slammed against walls, and made to
stand in the corner with his arms up for hours. Devonta stated that if he went to sleep, Father
and Mother would throw pennies at him to keep him awake. Nakila corroborated Devonta’s
statements, and also reported that she had been beaten, and that she and Tavius had been
locked in a closet. Tavius reported that an injury on his leg came from Mother cutting him
with a knife.

        The Children almost immediately began to display severe behavioral problems and
were very violent and aggressive in their play, often cursing and describing sexual acts that
should have been well beyond their knowledge. The Children all acted out sexually, on
themselves and each other. Devonta reported that Mother’s father (Mr. A.) had raped him.
DCS investigated and “indicated” Mother’s father as a sexual abuser. Devonta began to
hallucinate and hear voices telling him to commit acts of violence. He was put in Peninsula
Hospital for two weeks. Devonta’s symptoms and behavioral problems were so severe that
he was eventually reclassified as a “level three” foster child, meaning that he had to be placed
in a foster home that could give him the highest level of care and supervision.

        Nakila and Tavius also displayed extreme symptoms and behaviors, causing problems
in their first foster placement. The Children were put in therapy. Devonta and Nakila were
both diagnosed with PTSD and Reactive Attachment Disorder. Tavius was diagnosed with
Adjustment Disorder, anxiety and depression. All three Children exhibited what the
psychological experts described as “classic” signs of abuse, such as smearing feces,
dysregulation/inability to control their own bodies, sexual acting out/excessive masturbation,
dissociation/ “spacing out”, high levels of fear/anxiety, and aggression. Devonta was
described as always worried about something hurting him, and was unable to engage with
other people, even his family. The witnesses testified that he would eat until he threw up and
scratch himself until he made sores. He hurt a bird, threatened to kill a teacher, threatened

                                              -12-
to kill Tavius, and acted out sexually on other children. Devonta stated to numerous
witnesses that he had been abused, and all of the witnesses found his accounts credible and
consistent through the years.

       Nakila and Tavius were described as “out of control” and dysregulated – they went
from one emotional extreme to another very quickly. They would go up to complete
strangers and hug them and say “I love you.” They would curse and engage in violent play,
often depicting guns and killing. Nakila would have screaming tantrums for hours, would
compulsively masturbate, and would regress from talking to simply moaning. Nakila would
dissociate or “space out” for long stretches of time. Tavius would be aggressive and violent
in his play, cursing and using foul language. Tavius also had a very high pain tolerance,
which was described as unusual and a matter of concern for a child his age. Nakila and
Tavius would act out sexually with one another, and the foster homes had to install door
alarms on their bedroom doors to keep them from getting in bed together at night.

        All three children described specific instances of physical abuse by the parents, and
all three confronted the parents about the abuse in therapy. Nakila also described that she
was sexually abused by Father, and depicted the abuse by rubbing her hand in a circular
motion on her groin. The Children interacted with several different caseworkers, foster
parents, and therapists, all of whom testified that they believed the Children’s stories of
abuse, and that the stories were consistent. The family therapist noted that when the Children
confronted Father and Mother in therapy, Father and Mother called them liars, and would
react harshly. Father and Nakila were described as getting into extreme verbal
confrontations, and the therapist would have to make them stop. The Children did not want
to visit the parents, and often refused to sit by the parents or interact with them. Nakila
would hide under a table, or run down the hall screaming. Devonta would refuse to stay in
the room, finding any excuse to leave and go somewhere else. Tavius once experienced an
“encopretic” event during therapy, where he was so fearful that he involuntarily defecated.
The therapists testified that the Children’s reactions to the parents and their
behaviors/symptoms were all indicative of abuse, and that there was no other reasonable
explanation.

       Expert witnesses testified that Devonta showed signs of psychosis which could also
be the result of suffering head injury/trauma. Dr. Peter Young, a psychologist and
neuropsychologist, testified that he performed testing on Devonta, and that Devonta scored
low on the intelligence test, and definitely showed impairment. Dr. Young related that when
he asked Devonta to draw a picture of his choice, Devonta drew a “maniac shooting
somebody and laughing.” Dr. Young testified that Devonta had dementia due to trauma and
brain damage, and that he “presented a lot like kids from Eastern European orphanages,” who
were given no nurturing, such that their brains did not develop normally. Dr. Young testified

                                             -13-
that Devonta was severely impaired, likely as a result of neglect and abuse which had caused
brain damage. He testified that an MRI was done on Devonta’s brain at seven months of age,
and it was normal. He and a medical doctor both testified that Devonta’s more recent MRI
showed brain damage. Dr. Young testified that something significant had happened to
Devonta between the time of the two MRIs.

        Dr. Young also tested Tavius, and found him to be impaired as well. Dr. Young
testified that Tavius had no trust, therefore he could not “slow down” long enough to perform
a task. Dr. Young related that Tavius was very disconnected and simplistic, and tended to
show somatization, i.e. where emotional problems manifested as physical symptoms. Dr.
Young testified that Tavius’ impairment was caused by the environment in which he grew
up.

      Dr. William Allen tested/examined Nakila, and also found her to be developmentally
delayed. He described her as having depression with psychotic features. The medical doctor
who examined Devonta and his MRI that was performed in September 2008 stated that the
MRI was abnormal, and that this was most likely the result of trauma.

        A very notable fact that was shown through the testimony of several witnesses was
that after the Children came into custody, the constant bruising stopped. Likewise, Devonta
gained weight, and was no longer described as “skinny” like he had been before coming into
custody.

       A social worker who consulted on the case testified that since there was no question
that Father and Mother were the primary caretakers before the Children came into custody,
the trauma which caused the Children’s PTSD and attachment disorders had to have
happened as a result of the parents and their parenting. She also testified that it was very
unlikely that the Children could have been “coached” to make the same statements to
multiple people over a period of months or years. The DCS investigator who initially
investigated the abuse allegations testified that DCS had nine referrals on the Children in a
two-month period. She also testified that she was able to confirm Devonta’s claims through
her investigation, such as the white belt with grommets found in the home, and the fact that
crack cocaine was found when they searched Mr. A.’s home, just as Devonta had related.

        Dr. Perales, an expert in child abuse pediatrics, testified that she had reviewed
Devonta’s medical records and the photographs that were taken of his injuries. Dr. Perales
testified that the photographs showed pattern bruising that was consistent with the belt
explanation. She testified that the belt whipping would have had to have been done with
great force to cause the bruising displayed in the pictures. Dr. Perales also testified that the
bruises were of different ages, showing that they were the result of beatings with the belt

                                              -14-
more than once. Dr. Perales stated that the bruise and knot on Devonta’s head was consistent
with his description of having his head slammed into a wall. She testified that the injuries
were definitely the result of non-accidental trauma. Dr. Perales testified that abuse and
neglect could affect brain development, and could cause PTSD, brain injury and behavior
problems. She concluded that the Children’s psychological diagnoses would support a
finding that they were abused.

        In the face of this overwhelming body of evidence, the trial court still declined to find
severe child abuse. The trial court’s finding was not based on credibility, as the trial court
credited the testimony of the witnesses regarding abuse and neglect of the Children.3 The
trial court’s reluctance to find severe child abuse seems to have stemmed from two sources,
(1) allegations that Devonta got in fights after school which could have caused
bruising/injury, and (2) the lack of a proven “specific act” by Father or Mother other than the
“improper whipping.” As stated earlier, however, our case law mandates that the court
should look at the “combined weight of the facts” to determine if severe child abuse has been
shown. In re S.J., 2012 WL 3228729 at *15.

        Severe child abuse requires a showing that the parent knowingly exposed the child to
abuse or neglect that is likely to cause serious bodily injury or death, either by using force
on the child or failing to protect a child from such abuse/neglect. Tenn. Code Ann. §37-1-
102(b)(23). Serious bodily injury includes concussions/brain contusions, which were shown
in this case, as well as severe bruising by whipping a child with an object, which was also
shown. Tenn. Code Ann. §39-15-402(d). The proof established that Devonta sustained
serious bodily injury while in the custody of Father and Mother, and no reasonable
explanation was shown for those injuries other than abuse. Even if the trial court did not
believe that it was definitely shown that the parents inflicted the injuries, it was clearly shown
that the injuries occurred “on their watch” and that they failed to protect Devonta from being
injured.

         Likewise, severe child abuse is also defined as “specific brutality, abuse, or neglect
. . . that in the opinion of qualified experts has caused . . . severe psychosis, severe neurotic
disorder, severe depression, severe developmental delay or intellectual disability, or severe
impairment of the child’s ability to function adequately in the child’s environment, and the
knowing failure to protect a child from such conduct.” Tenn. Code Ann. §37-1-
102(b)(23)(emphasis added). Once again, the trial court declined to find severe abuse
because the only “specific act” proven was that of Mother whipping the child with a belt.
The overwhelming evidence, however, shows that the Children were either abused or


        3
         The trial court noted that Devonta was described as lying frequently, but that the other two children
were not described this way.

                                                    -15-
neglected in such a way that many qualified experts opined that it had caused the Children
to have severe disorders, depression, developmental delay/intellectual disability, and
impairment of the Children’s ability to function in their environment. Therefore, even if the
trial court did not feel that it could find more than one “specific act” perpetrated by the
parents, they were, at a minimum, guilty of failing to protect the Children who were in their
care.

       The trial court interpreted the statute too strictly. A great deal of direct and
circumstantial evidence was shown in this case to establish that the Children were severely
abused/neglected and severely damaged as a result, all while the parents had custody. The
combined weight of the facts in this case clearly shows that Father and Mother were guilty
of severe child abuse, and the trial court erred in failing to find accordingly. Thus, we
reverse the trial court on this issue, finding that clear and convincing evidence establishes the
ground of severe child abuse as a basis for terminating the parental rights of Father and
Mother. Tenn. Code Ann. §36-1-113(g)(4) (Supp. 2012).

                                               V.

      We will next consider the issues raised by the parents regarding persistent conditions
and substantial noncompliance, although only one ground must be proven by clear and
convincing evidence to justify termination. In re Audrey S., 182 S.W.3d 838, 862 (Tenn.
Ct. App. 2005).

       The trial court found by clear and convincing evidence that Father and Mother were
in substantial noncompliance with their permanency plans. See Tenn. Code Ann. §36-1-
113(g)(2). The court found that the goals of the plans were appropriate and in the Children’s
best interest, and that the responsibilities were reasonable and related to remedying the
conditions necessitating foster care. This finding has not been disputed.

       The court found that one of the major requirements of the plans was for the parents
to “consistently demonstrate appropriate parenting techniques.” The court found that this
was never accomplished, and the proof bears this out. As the trial court noted, neither parent
seemed able to understand how severely damaged the Children were, or the level of care that
would have to be given in order to effectively parent them.

       The first case manager testified that Father and Mother displayed inappropriate
parenting skills during their visits with the Children. She testified that Father was too harsh.
She described an incident where he chased Tavius around pretending to be a bee (which
Tavius was terrified of) until Tavius was crying and begging him to stop. She described
another incident where Nakila was lying on the floor, and Father got a ball and repeatedly

                                              -16-
and forcefully bounced it on the floor right next to Nakila’s head, to see if it would scare her.
She testified that Mother would dissociate during visits, and could not provide boundaries
or discipline. The case manager testified that the parents never acknowledged the Children’s
symptoms/problems, and also never acknowledged that Mr. A. had sexually abused Devonta.
She testified that during the time she worked with the family, the parents showed no
improvement in their parenting skills. She opined that they could not parent for an extended
period of time without reverting to abuse.

       The next case manager testified that the visits between the parents and Children were
always difficult, and seemed to get worse over time. She testified that Mother still relied on
her father quite a bit, and had not made any progress in dealing with her father and the sex
abuse allegations. She testified that it would be difficult for Mother not to have the Children
around him. Another case manager testified that the parents never showed that they could
implement proactive and appropriate discipline or boundaries. The worker testified that
while Mother completed non-offender sex abuse classes, Mother was never willing to believe
that her father did anything to Devonta. She testified that Mother also did not tell her new
boyfriend, who has a young daughter, about the sexual abuse allegations against her father.
The boyfriend became angry when the case manager told him because he had allowed his
daughter to go to Mr. A.’s house. The case manager also testified that Father accepted no
responsibility for anything, and maintained that the Children were fine before they came into
custody, despite the testimony of the teachers and school officials to the contrary.

        The latest caseworker assigned to Nakila and Tavius testified that they never wanted
to visit with Father and Mother, and that their behaviors would escalate around the time of
the visits. She testified that Nakila’s relationship with Father had only gotten worse, and that
Nakila was clearly afraid of him. She further testified that, since the worker had the case, the
Children regularly referred to Father and Mother by their first names.

        The family therapist likewise testified that she did not think Father and Mother could
parent effectively because Father was too aggressive and confrontational and Mother would
not stand up for the Children or protect them. She testified that Father was diagnosed with
Narcissistic Personality Disorder, and that this meant he had a grandiose sense of self, could
be manipulative and deceitful, and had a lack of empathy for others. The family therapist
testified that the parents made little progress toward displaying appropriate emotion or
demonstrating effective communication.

       Another counselor who worked with the family stated that the Children had a weak
attachment to the parents. She testified that Nakila, for example, was uncomfortable with
Father and did not try to engage with him. She testified that Nakila tried to engage with
Mother, but Mother would dissociate and withdraw.

                                              -17-
       The testimony of Father and Mother was very telling. Father testified that he and
Mother had divorced and he was living with his sister. Father admitted that, while he did not
have appropriate housing for the Children at the time of trial, he thought he could get housing
with some assistance. Father admitted that he was 16 and Devonta’s biological mother was
12 when they met, and she was only 15 when she had Devonta.

        Father first testified that Devonta was a “happy kid” before his removal. He testified
that he only saw the Children about 45 minutes a day because he worked so much. Father
testified that Devonta could be manipulative, and did tell “fibs”. Father testified that
Devonta was clumsy, and got in fights after school. Father testified that he never saw
anything in the Children’s behavior that concerned him, although he admitted that Devonta
once put a drill to Nakila’s head and turned it on, and the only thing that kept it from
penetrating her skull was that it got caught in her hair. Father testified that Nakila was
normal, but then admitted that they often caught her masturbating. Father testified that he
didn’t believe that Mr. A. sexually abused Devonta at first, but now he does. He said that
Mr. A. may have abused Nakila as well.

        Inexplicably, Father then testified that Devonta was unhappy at home, and would not
interact with the family. Father opined that this was because he worked so much and
Devonta’s biological mother was not there. Father testified that he did not believe, however,
that the Children had PTSD or attachment disorders. Father was shown the photos of
Devonta’s injuries. He testified that Mother told him she whipped Devonta with a belt, and
that he was squirming and the belt accidently hit his back. Father had no explanation for the
other injuries, except to say that Devonta often got into fights. Father admitted that he never
tried to find out if Devonta was getting picked on or to otherwise do anything about the
“fights.” Father later testified that he remembered Devonta tripping over a vacuum cleaner
in the hallway and hitting his head, and thought that might explain the bruise on his head.
When Father was asked why he thought the Children made the allegations against him and
Mother, he testified that he thought they were coached. Father admitted that he did not really
know what problems the Children had, or what he needed to do to be a better parent, except
not use corporal punishment.

        Mother testified that she was 17 when she met Father, and he was 23. She testified
that she got pregnant with Nakila at age 19 and they got married. Mother testified that
Devonta came to live with them when he was about two and a half years old. Mother
testified that it was hard to get Devonta to obey, but she only whipped him maybe two times,
and would usually put him in time out. Mother testified that she had also seen Father whip
Devonta with a belt. Mother testified that she could not remember the occasion that Father
described when he said she called him at work and told him she had whipped Devonta.



                                             -18-
       Mother testified that the Children had no unusual behavior problems before they went
into custody. Mother admitted that she had seen Nakila masturbating. Mother testified that
she did not believe her father did anything to Devonta. She testified that she would keep the
Children away from him anyway.

        Mother testified that she did own a white belt like the one that had been described, but
she could not remember if she whipped Devonta with it. When shown the photographs,
Mother testified that she did not know how Devonta got the marks and bruises on his body.
Mother testified that Devonta told her he got in fights, and she also related the story about
him tripping over the vacuum cleaner. Mother testified that she was now living in a two
bedroom house that her grandmother left to her. She testified that she was not seeking
custody of Devonta, but that if Nakila and Tavius were returned to her, she would let them
each have a bedroom and she would sleep on the couch. Mother testified that she worked
third shift at Kenjo Market, and would have to rely on her sister for help with the Children.
Surprisingly, Mother testified that Nakila and Tavius did not lie much, so they should be
believed if they said there was abuse/neglect in the home.

       Father and Mother had not completed one of the major requirements of the plans, i.e.
to “consistently demonstrate appropriate parenting techniques.” Numerous witnesses who
worked with the family testified that Father and Mother were simply unable to effectively
parent the Children, even after DCS worked with them for over two years. The parents were
required to understand the effects of abuse on Children and try to prevent further abuse, but
neither parent was ever willing to admit that he or she had any responsibility for the abuse.
The parents could not show, even for less than two hours every two weeks, that they could
effectively or appropriately parent or discipline the Children, or provide for their emotional
needs. The parents maintained that the Children were fine before they came into custody,
when the proof showed this not to be true. The parents refused to acknowledge that they had
any responsibility for the Children being in custody, and did not seem to know how to do
anything differently. The parents did not have appropriate homes for the Children. They did
not understand the Children’s problems or what type of care they needed. Mother testified
that she still did not believe that her father had done anything to Devonta. In short, the
parents simply failed or refused to grasp what would be required of them to parent the
Children, and the Children have suffered enough damage while in the custody of the parents.
The evidence does not preponderate against the trial court’s finding, said to be made by clear
and convincing evidence, that the termination of Father and Mother’s parental rights was
warranted because of substantial noncompliance with the permanency plans.




                                              -19-
                                             VI.

        The trial court found, as a ground for termination, clear and convincing evidence of
“persistence of conditions” as defined in Tenn. Code Ann. § 36-1-113(g)(3), which provides
as follows:

              The child has been removed from the home of the parent or
              guardian by order of a court for a period of six (6) months and:

              A. The conditions that led to the child’s removal or other
              conditions that in all reasonable probability would cause the
              child to be subjected to further abuse or neglect and that,
              therefore, prevent the child’s safe return to the care of the
              parent(s) or guardian(s), still persist;

              B. There is little likelihood that these conditions will be
              remedied at an early date so that the child can be safely returned
              to the parent(s) or guardian(s) in the near future; and

              C. The continuation of the parent or guardian and child
              relationship greatly diminishes the child’s chances of early
              interaction into a safe, stable and permanent home;

       The parents argue that the evidence is deficient in that, according to them, it fails to
show that “the children have been removed from the custody of the parents by order of the
court for no less than six months before the termination action was initiated.” In re Zmaria,
M2009-02440-COA-R3-PT, 2010 WL 3328009 at *10 (Tenn. Ct. App. M.S., filed Aug. 24,
2010) (emphasis added) (citing Tenn. Code Ann. § 36-1-113(g)(3)). The parents are correct
that there is no order in the record reflecting whether and when the trial court found the
Children to be dependent and neglected. Because of the absence of such an order, there is
no evidence of an essential element of a “persistence of condition” claim. Therefore, the
evidence preponderates against a finding of persistence of conditions. We reverse the trial
court’s determination that termination is appropriate under this ground.

                                             VII.

        The parents also argue that DCS failed to make reasonable efforts to reunify them
with the Children. The trial court found, however, that DCS had made “extraordinary”
efforts in this case, and had provided the parents with a “multitude of appropriate and timely
services.” The proof supports this finding. Further, based on the severe abuse of the Children

                                             -20-
by both Mother and Father, as discussed above, DCS was relieved of any obligation to work
toward restoring custody of the Children to them. See Tenn. Code Ann. § 37-1-166 (2010)
(DCS is not required to exercise “reasonable efforts” to reunify a child with his/her parent(s)
where the parent(s) have subjected that child or a sibling of that child to “aggravating
circumstances”) and § 36-1-102(9) (defining “aggravating circumstances” to include “severe
child abuse”). See also In re Keara J., 376 S.W.3d 86 (Tenn. Ct. App. 2012).

                                             VIII.

                                               A.

        Father and Mother argue that DCS failed to show, by clear and convincing evidence,
that termination is in the Children’s best interest. When, as here, at least one ground for
termination of parental rights has been established, DCS must then prove, by clear and
convincing evidence, that termination of the parent’s rights is in the children’s best interest.
White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 1994). When a parent has been found
to be unfit by establishment of a ground for termination, the interests of parent and children
diverge, and the focus shifts to what is in the children’s best interest. In re Audrey S., 182
S.W.3d 838 at 877.

        Tenn. Code Ann. § 36-1-113(i) provides a list of factors the trial court is to consider
when determining if termination is in the child’s best interest. This list is not exhaustive, and
the statute does not require the court to find the existence of every factor before concluding
that termination is in a child’s best interest. Id. at 878. Further, the best interest of a child
must be determined from the child’s perspective and not that of the parents. White, 171
S.W.3d 187 at 194.

       Tenn. Code Ann. § 36-1-113(i) lists the following factors for consideration:

              (1) Whether the parent or guardian has made such an adjustment
              of circumstance, conduct, or conditions as to make it safe and in
              the child’s best interest to be in the home of the parent or
              guardian;

              (2) Whether the parent or guardian has failed to effect a lasting
              adjustment after reasonable efforts by available social services
              agencies for such duration of time that lasting adjustment does
              not reasonably appear possible;




                                              -21-
             (3) Whether the parent or guardian has maintained regular
             visitation or other contact with the child;

             (4) Whether a meaningful relationship has otherwise been
             established between the parent or guardian and the child;

             (5) The effect a change of caretakers and physical environment
             is likely to have on the child’s emotional, psychological and
             medical condition;

             (6) Whether the parent or guardian, or other person residing with
             the parent or guardian, has shown brutality, physical, sexual,
             emotional or psychological abuse, or neglect toward the child,
             or another child or adult in the family or household;

             (7) Whether the physical environment of the parent’s or
             guardian's home is healthy and safe, whether there is criminal
             activity in the home, or whether there is such use of alcohol or
             controlled substances as may render the parent or guardian
             consistently unable to care for the child in a safe and stable
             manner;

             (8) Whether the parent’s or guardian’s mental and/or emotional
             status would be detrimental to the child or prevent the parent or
             guardian from effectively providing safe and stable care and
             supervision for the child; or

             (9) Whether the parent or guardian has paid child support
             consistent with the child support guidelines promulgated by the
             department pursuant to § 36-5-101.

                                            B.

       In this case, the trial court considered the above factors and made the following
findings, which we will paraphrase for brevity:

             Neither parent made any significant adjustment in his/her
             circumstances because neither parent understood the nature of
             the Children’s special needs, neither parent had exhibited the
             capacity to appropriately parent the Children, neither parent had

                                           -22-
an appropriate home with enough space and security, and neither
parent had addressed his/her own issues.

Given the time the Children had been in custody, neither parent
had effected a significant adjustment, despite a “multitude of
appropriate and timely services” by DCS, and such an
adjustment did not appear to be reasonably possible.

While there had been visitation, the Children’s relationship with
the parents was not meaningful, and the Children did not want
to visit the parents nor live with the parents. The parent/child
relationship is not a positive one.

Allowing either parent to have the Children come home would
set the Children back significantly, possibly irreversibly. The
Children are making some progress with their current
therapy/placements, but that progress is limited by the
continuing contact with the parents.

The Children have suffered physical abuse and neglect at the
hands of the parents.

Neither parent has learned and can demonstrate appropriate
parenting for the Children, nor have they addressed their own
mental health issues. The parents cannot provide safe and
suitable supervision for the Children.

Nakila and Tavius have foster parents who are willing to adopt.
Devonta will be much harder to find an adoptive home, but his
current foster family is willing to keep him as a foster child. It
is still in his best interest to terminate the parent/child
relationship, however, so that he can realize he will never have
to go home with them and he can heal.

The Children are traumatized by the visits with parents, and
cannot begin healing until that traumatization stops.

DCS has made extraordinary efforts to achieve permanency for
the Children. DCS cannot force Mother and Father to
understand, learn, and change their behaviors.

                               -23-
        The proof supports these findings, as has already been fully explained above. Thus,
the trial court did not err in finding, by clear and convincing evidence, that termination is in
the best interest of the Children.

                                              IX.

        The judgment of the trial court terminating the parental rights of Father and Mother
is affirmed. The Court also affirms the trial court’s finding of substantial noncompliance
with the Children’s permanency plans. The trial court’s finding that Father and Mother were
not guilty of severe child abuse is reversed as is the court’s finding of persistence of
conditions. Costs on appeal are taxed to appellants, Russell C. and Brandy C. This case is
remanded to the trial court, pursuant to applicable law, for enforcement of the trial court’s
judgment and collection of costs assessed below.




                                    __________________________________________
                                    CHARLES D. SUSANO, JR., PRESIDING JUDGE




                                              -24-
