Facts: Child was born to Mother and Father. Within the first few months of Child’s life, he suffered various forms of physical abuse resulting in fractured bones and other injuries.

The Department of Children’s Services (DCS) intervened, and protective custody was awarded to the Paternal Grandparents.

A pediatrician testified that Child’s injuries were not accidental.

Both parents denied abusing Child but did not explain what happened.

The trial court found clear and convincing evidence that Child was the victim of abuse, but concluded it could not find severe abuse because, with each parent claiming ignorance of how Child received the injuries, it could not find clear and convincing evidence that one or the other was responsible and had “actual knowledge” of the abuse. Child was found to be dependent and neglected. Each parent was awarded supervised visitation with Child.

DCS appealed.

On Appeal: The Court of Appeals reversed the trial court.

“Severe child abuse” is defined as “the knowing exposure of the child to or the knowing failure to protect the child from abuse or neglect that is likely to cause serious bodily injury or death.”

Serious bodily injury includes a fracture of any bone, a concussion, bleeding in the brain, severe bruising, and other indicia of injuries.

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” requirement can often be gleaned from circumstantial evidence, including medical expert testimony on the likelihood that the injury occurred in the manner described by the parent or caregiver.

The Court found the proof established severe abuse:

The combined weight of the trial court’s findings clearly and convincingly shows severe child abuse. It is, therefore, unclear why the trial court did not go further and render a finding of severe child abuse given that the evidence is clear and convincing as to the severe child abuse. We need not identify which parent physically applied the violent force necessary to inflict the injuries on [Child] because, in view of the medical evidence, other facts as found by the trial court, and the trial court’s credibility determinations, there were sufficient facts presented to Mother and Father from which, at a minimum, each could have and should have recognized that severe child abuse had occurred or that it was highly probable to occur and that the other parent was the abuser.

We emphasize that the burden of proof as to severe child abuse is clear and convincing evidence. While a serious subject matter with important implications for the parents and children, this is not a criminal matter. The burden of proof is not “beyond a reasonable doubt.” Clear and convincing evidence is a higher threshold than a preponderance of the evidence, but it is less than beyond a reasonable doubt. On this record, we have no serious or substantial doubt that the combined weight of the facts as found by the trial court, against which the evidence does not preponderate, establishes severe child abuse by clear and convincing evidence. . . . We hold that the evidence clearly and convincingly establishes that Father or Mother subjected [Child] to severe child abuse and that the other parent covered for the other rather than protect [Child] from the severe child abuse.

The trial court’s judgment was reversed.

In re E.Z. (Tennessee Court of Appeals, Eastern Section, March 26, 2019).