Posted by: koherston | April 11, 2011

“Severe Child Abuse” in Tennessee Dependency and Neglect Matter: In re Samaria S.

Facts: Mother gave birth to premature twins. Before the hospital released the infants to Mother’s care, she was given extensive instructions on their feeding. Two weeks later, one twin was hospitalized, near death from severe malnutrition and dehydration. Days later, the other twin was hospitalized, also severely malnourished and dehydrated. The twins were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) and a petition for dependency and neglect was filed alleging severe child abuse. Mother stipulated to dependency and neglect but denied severe child abuse. The juvenile court held that the first twin had been subjected to severe child abuse, but not the second twin. Mother appealed this finding to the circuit court, which held that both twins had been subjected to “severe child abuse” as defined in Tennessee Code Ann. § 37-1-102(b)(23)(A) and (B). Mother appealed.

On Appeal: The Court of Appeals affirmed the circuit court.

Mother contested the finding of “severe child abuse” because that finding has serious consequences, including the prohibition on returning the child to the unless the court finds on the basis of clear and convincing evidence that the child will be provided a safe home free from further such brutality and abuse. Tennessee Code Ann. § 37-1-130(d). Further, DCS is relieved of the obligation to use reasonable efforts to reunify the child with the parent, it is more difficult for the parent to regain custody, and one ground for termination of the parent’s parental rights is effectively established.

“Severe child abuse” is defined by Tennessee Code Ann. § 37-1-102(b)(23)(A) and (B) as follows:

(A) 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, or

(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 retardation, 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.

Mother argued the evidence did not show that her neglect of her premature infants was “knowing,” as required under the statutory definition. DCS argued it was not required to prove that Mother’s neglect was “knowing.”

DCS argued the word “and” in subsection (B) above “may be read to mean either ‘and’ or ‘or,'” in other words, either conjunctively or disjunctively. DCS maintained subsection (B) is intended to apply to those who perpetrate abuse or neglect sufficient to cause severe developmental or psychological delays, whether knowing or not.

The Court began by noting this is a case of first impression in Tennessee as no other case has analyzed the definition of “severe child abuse” under subsection (B). It then stated:

Conspicuously absent from the first portion of this subsection is the term “knowing.” The omission of “knowing” in the first part of subsection (B), applicable to the perpetrator of the abuse or neglect, could be construed to suggest that the child will be considered the victim of “severe child abuse” if the statutory requirements are met, regardless of the extent of the perpetrator’s knowledge. Moreover, reading the statute naturally, the word “knowing” in the last part of the subsection appears to refer to an enabler of the abuse or neglect, not to the perpetrator.

The Court then engaged in the following reasoning:

From our review, subsection (B) appears intended to address precisely the circumstance in this case, namely, child victims who are especially fragile and vulnerable and less able to survive the risk inherent in reunification. The failure to properly nourish a fourteen-year-old child for a two-week period, while abusive, would not have the catastrophic consequences of the failure to nourish a premature infant who is only days old. Subsection (B) appears intended to be broad enough to include a perpetrator’s conduct toward an especially vulnerable child victim that, regardless of the perpetrator’s knowledge or intent, creates “an unacceptably high risk to the health, safety and welfare of the child. . . .”

Reading Section 37-1-102(b)(23) as a whole, it appears that the omission of the term “knowing” in the first part of subsection (B) was intentional, not merely inadvertent or the result of inartful drafting. The omission, then, means that specific knowledge is not required for a finding of severe child abuse by the perpetrator under this subsection. This conclusion is consistent with the statutory scheme as a whole. Thus, we conclude that, under subsection (B) of Section 37-1-102(b)(23), the trial court was not required to find that Mother’s neglect was “knowing” in order to find that her twin infants were the victims of “severe child abuse.”

Regarding the proof of Mother’s “knowing” conduct, the Court found:

Mother’s assertion, that both of her premature babies were in fact fed in accordance with the instructions she had been given, was patently untrue. After a favorable checkup with the pediatrician on July 27, 2007, less than two weeks later, on August 9, 2007, Boy Twin was rushed to the Hospital “pretty much dead.” The records and the undisputed testimony describe an infant whose appearance was shocking, with no fat whatsoever under his skin, skin hanging over his bones, and in respiratory distress. Clearly, Boy Twin had been consistently starved during the interval between July 27 and August 9. By the time Girl Twin was rushed to the Hospital, the evidence shows that she was in a similar state, with essentially no subcutaneous fat and skin hanging on her bones. The fact that Mother would assert falsely in her testimony that both babies had been fed appropriately and that Boy Twin looked like he was “doing fine” until he went into respiratory distress is also indicative of her “state of awareness.” Moreover, after Boy Twin was hospitalized, Mother must have been aware of his dire condition, and nevertheless apparently continued to starve Girl Twin until she too was hospitalized. We find clear and convincing evidence in the record to support the circuit court’s conclusion that Mother’s neglect was “knowing.”

In re Samaria S. (Tennessee Court of Appeals, Western Section, March 8, 2011).

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


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