Posted by: koherston | April 4, 2011

Dependency and Neglect: In re Nirvanna S.

Facts: Mother and Father were parents to two girls, Dreama and Nirvanna (“Child”). Dreama died. A medical examination revealed old and new bruises on several areas of her body, torn rectal tissue, and multiple broken and fractured bones. The Tennessee Department of Children’s Services (“DCS”) brought an action to remove Child from her parents’ custody because she and Dreama were dependent, neglected, and had been severely abused. The juvenile court found Child was dependent and neglected but found she had not been severely abused. The juvenile court awarded temporary custody of Child to DCS and charged it with undertaking reasonable efforts toward reunifying the Child with Mother and Father. DCS appealed that finding to circuit court. After a second trial, the circuit court found both Dreama and Child had been “severely abused,” which finding relieved DCS of any obligation to reunify Child with her parents. Mother appealed.

On Appeal: The Court of Appeals reversed the circuit court’s finding that Child had been “severely abuse” but affirmed everything else, including relieving DCS of any obligation to work toward reunifying Child with her parents.

Mother first contested the trial court’s finding of severe abuse regarding Dreama, arguing that she did not “knowingly” abuse 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.

In this context, “knowing” conduct includes both (1) actual knowledge of the relevant facts and circumstances and (2) deliberate ignorance or reckless disregard of the information that has been presented to the parent.

The Court reviewed the record and rejected Mother’s argument because of overwhelming evidence that Mother recklessly disregarded information that Dreama was being severely abused. The following is but a small sample of the factual record:

[W]hile 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 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.

Of greater interest (to me) was Mother’s argument that the circuit court erred by finding Child had been severely abused just because Dreama was severely abused. The Court noted:

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.

To their credit, the DCS attorneys handling the appeal (not the same lawyers who represented DCS at trial) conceded that Mother’s legal argument was correct, stating:

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

The trial court’s finding of severe abuse as to Child was reversed. So what substantive difference did this reversal make for Mother? In other words, what did Mother win? Nothing.

Tenn. Code Ann. § 37-1-166(g)(2)(B)(4) states that DCS does not have to attempt to reunite a child with a parent if the parent subjected the child or a sibling to—you guessed it—severe child abuse. Thus, the severe abuse to Dreama relieved DCS of its obligation to work toward reuniting Child with Mother.

Mother won a minor legal battle but rightfully lost the war. Question: why did DCS’s trial counsel fight so hard for what turned out to be an erroneous finding that made no difference in the outcome?

In re Nirvanna S. (Tennessee Court of Appeals, Eastern Section, February 28, 2011).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.


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